When Government Intrudes: Regulating Individual Behaviors ...

Maurice A. Deane School of Law at Hofstra UniversityScholarly Commons at Hofstra Law

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When Government Intrudes: RegulatingIndividual Behaviors that Harm the EnvironmentKatrina Fischer KuhMaurice A. Deane School of Law at Hofstra University

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Recommended CitationKatrina Fischer Kuh, When Government Intrudes: Regulating Individual Behaviors that Harm the Environment, 61 Duke L.J. 1111 (2012)Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/75

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Duke LawJournal

VOLUME 61 MARCH 2012 NUMBER 6

WHEN GOVERNMENT INTRUDES:REGULATING INDIVIDUAL BEHAVIORS

THAT HARM THE ENVIRONMENT

KATRINA FISCHER KUHt

The regime of a free society needs room for vastexperimentation. Crises, emergencies, experience at the individualand community levels produce new insights; problems emerge innew dimensions; needs, once never imagined, appear. To stopexperimentation and the testing of new decrees and controls is todeprive society of a needed versatility.

- Justice William Douglas

Experience should teach us to be most on our guard to protectliberty when the Government's purposes are beneficent. Men bornto freedom are naturally alert to repel invasion of their liberty byevil-minded rulers. The greatest dangers to liberty lurk in insidiousencroachment by men of zeal, well-meaning but withoutunderstanding.2

- Justice Louis Brandeis

Copyright @ 2012 by Katrina Fischer Kuh.

? Associate Professor of Law, Maurice A. Dean School of Law at Hofstra University. Iam grateful to the many individuals who provided guidance and comments in the developmentof this project, in particular Jamie Abrams, Eric Biber, Ronald Colombo, Karl Coplan, Jason J.Czarnezki, Victor Flatt, Brian Frye, Keith Hirokawa, Anibal Lebron, Andrew Lund, AshiraOstrow, Jessica Owley, Rosemary Queenan, Sarah Schindler, Michael Vandenbergh, and RoseVillazor. I benefited greatly from comments that I received after presenting the piece duringworkshops at the Hofstra University School of Law, at the Pace Law Faculty Colloquium, andat the 2011 Northeast Regional Scholarship and Teaching Development Workshop. And I amindebted to my hard-working research assistants, Jonathan Nasca and Jessica Smith.

1. Poe v. Ullman, 367 U.S. 497, 518 (1961) (Douglas, J., dissenting).

2. Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting), overruledon other grounds by Katz v. United States, 389 U.S. 347 (1967), and Berger v. New York, 388U.S. 41 (1967).

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ABSTRACT

Emerging environmental problems and technologies, coupled withthe existence of mature regulatory regimes governing most industrialsources of pollution, reveal with new clarity the harms that individualbehaviors can inflict on the environment. Changing how individualsimpact the environment through their daily behaviors, however,requires a reorientation of environmental law and policy and abalancing of government prerogatives with individual liberty. Agrowing body of legal scholarship recognizes the environmentalsignificance of individual behaviors, critiques the failure of law andpolicy to capture harms traceable to individuals, and suggests andevaluates strategies for capturing individual harms going forward. Inthis discussion, mandates on individuals have been largely dismissedas a policy tool for changing environmentally significant individualbehaviors because of a widely shared view (1) that detection andenforcement of such mandates would pose insurmountable technical,administrative, and cost barriers and (2) that the application ofmandates to individuals would trigger insurmountable objections totheir intrusive effect, essentially so offending notions of liberty andprivacy that they could not be adopted or enforced.

But there are reasons to believe that the cost and feasibility ofimposing mandates on environmentally significant individualbehaviors may be less daunting than widely imagined. Notably,intrusion objections have yet to be subjected to critical examination. Abetter understanding of whether, when, and why mandates onenvironmentally significant individual behaviors might trigger fatalintrusion objections would help to assess mandates as a policy tool forchanging environmentally significant individual behaviors and wouldoffer guidance about how mandates could be structured to avoid suchobjections.

This Article undertakes an initial effort to better define andunderstand the intrusion objection as it applies to the use of individualmandates to change environmentally significant behaviors. Part Isurveys prior and existing laws aimed at individual behaviors andassociated environmental harms to develop a rough sense of whensuch regulations have, and have not, triggered what could becharacterized as intrusion objections. Part II then looks to substantivedue process jurisprudence for further guidance about when and whygovernment restrictions on individual freedom might give rise tointrusion objections. Part III builds on Parts I and II to offer a morenuanced understanding of the intrusion objection and suggests someprinciples to guide the consideration and development of mandates onenvironmentally significant individual behaviors going forward. Part

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WHEN GOVERNMENT INTRUDES

III proposes as an example an energy-waste ordinance designed toavoid intrusion objections.

The Article concludes that the obstacle to direct regulation ofenvironmentally significant individual behaviors posed by theintrusion objection is both narrower and broader than presentlyrecognized. The obstacle posed by the intrusion objection is narrowerbecause although the enforcement of mandates against someprimarily in-home behaviors may occasion insurmountable privacyobjections, other environmentally significant individual behaviors canbe and are regulated without triggering these objections. The obstacleposed by the intrusion objection is broader because perceivedgovernment intrusion is just one of the costs-along with monetarycosts and inconvenience-that regulation can impose on individuals.The more salient variable for purposes of understanding theobjections to regulating environmentally significant individualbehaviors is transparency: direct regulation, as opposed to indirectregulation, tends to make all of the costs of regulation moretransparent, an effect that may invite public resistance.

TABLE OF CONTENTS

Introduction ................................ ..... 1114I. Surveying Regulations Designed To Reduce Individual

Environmental Harms .. .......................... 1126A. Indirect Regulation of Environmentally Significant

Individual Behaviors Is Common and WidelyAccepted ........................... ..... 1126

B. Direct Regulation of Environmentally SignificantIndividual Behaviors ........................ 11321. Clean Air Act ...................... ..... 11352. Clean Water Act................. ........ 11403. Endangered Species Act......... ............. 1143

C. Lessons from Regulation of EnvironmentallySignificant Individual Behaviors .......... ...... 1147

II. Recognizing Intrusion: Lessons from Substantive DueProcess .................................... 1152A. The Relevance of Substantive Due Process and the

Early Privacy Cases............... ............... 1153B. Direct Versus Indirect Regulation .......... ..... 1160C. The Significance of the Home ................... 1168

III. Discerning Principles..........................1174Conclusion............... ................. ..... 1180

2012] 1113

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INTRODUCTION

Emerging environmental problems and technologies, coupledwith the maturation of regulatory regimes governing most industrialsources of pollution, reveal with new clarity the harms that individualbehaviors and lifestyles inflict on the environment. Individualbehaviors and lifestyles lie at the core of both the climate-changeproblem and its potential solutions.' Individuals directly pollute arange of environmental media in significant volumes; indeed,individual sources are responsible for approximately "a third of thechemicals that form low-level ozone or smog," and "[h]ouseholdsdischarge as much mercury to wastewater as do all large industrialfacilities combined."4 Increasingly sophisticated detection andmapping methods document resource depletion and theunsustainability of present Western lifestyles and consumption.' Inthe memorable words of one scholar, "Actions that may not havepreviously appeared to be worthy of regulation have been found tocause significant adverse impacts cumulatively, over time, and incontext-heading us toward a certain death by a thousand cuts." 6 But

3. Including only "behaviors over which individuals have direct, substantial control"-andthereby excluding emissions associated with the production of consumer goods and food-theaverage American emitted over seven tons of carbon dioxide in 2000, for a total of 4.1 trillionpounds of individual emissions-compared to the 3.9 trillion pounds attributable to the entireindustrial sector. Michael P. Vandenbergh & Anne C. Steinemann, The Carbon-NeutralIndividual, 82 N.Y.U. L. REV. 1673, 1693-94 (2007). Individual emissions constitute 32 percentof annual emissions in the United States. Id. at 1694. For an excellent, in-depth explanation ofthe environmental impact of individual behaviors on climate change, see generally JASON J.CZARNEZKI, EVERYDAY ENVIRONMENTALISM: LAW, NATURE AND INDIVIDUAL BEHAVIOR(2011).

4. Hope M. Babcock, Assuming Personal Responsibility for Improving the Environment:Moving Toward a New Environmental Norm, 33 HARV. ENVTL. L. REV. 117, 120-21 (2009).

5. For example, satellite mapping and other technologies are used to more accuratelyassess deforestation and forest degradation. See, e.g., Scott J Goetz, Alessandro Baccini, NadineT Laporte, Tracy Johns, Wayne Walker, Josef Kellndorfer, Richard A Houghton & Mindy Sun,Mapping and Monitoring Carbon Stocks with Satellite Observations: A Comparison of Methods,CARBON BALANCE & MGMT., Mar. 25, 2009, http://www.cbmjournal.com/content/4/1/2(reviewing various remote-sensing techniques for measuring aboveground biomass andconcluding that those techniques provide advantages over traditional technologies). Somejournals, such as Remote Sensing of Environment, focus solely on advanced methods ofenvironmental monitoring. See Remote Sensing of Environment, ELSEVIER, http://www.journals.elsevier.com/remote-sensing-of-environment (last visited Feb. 14, 2012) ("The emphasis of thejournal is on biophysical and quantitative approaches to remote sensing at local to globalscales.").

6. Keith H. Hirokawa, At Home with Nature: Early Reflections on Green Building Lawsand the Transformation of the Built Environment, 39 ENVTL. L. 507, 562 (2009) (footnoteomitted).

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2012] WHEN GOVERNMENT INTRUDES 1115

existing federal environmental laws focus on controlling the impactsof resource extraction-pollution generated by industrial sourcesduring, for example, the manufacturing or production of a good-andthe disposal of waste. These laws rarely address individual behaviorsor apply directly to private individuals.! And, in the few instances inwhich federal environmental laws do directly impose controls onindividuals-for example, by introducing limits on the use of privateproperty to protect wetlands or endangered species--enforcementhas often been both controversial and halting.! Using law to changehow individuals impact the environment through their behaviors andlifestyles thus requires a reorientation of environmental law andpolicy and also perhaps a balancing of government prerogatives withindividual liberty.

Four "types of constraint[s]" operate on individual behaviors andthus offer potential paths for reorienting environmental law andpolicy to better capture or control harms from individual behaviors: alaw, or mandate, that directs behaviors by threatening sanctions;social norms; markets; and architecture, or features of the world.oMandates impose direct constraints on behaviors, whereas socialnorms, markets, and architecture impose indirect constraints onbehaviors. As Professor Lawrence Lessig explains, "In its direct

7. Individuals are, for example, specifically exempted from regulation under subtitle C ofthe Resource Conservation and Recovery Act (RCRA) of 1976, 42 U.S.C. §§ 6901-6992k(2006), which allows individuals to dispose of hazardous wastes, without any controls, as part ofthe nonhazardous-solid-waste stream. See 40 C.F.R. § 261.4(b)(1) (2011) (setting forth thehousehold-waste exemption to RCRA, an exemption that provides that "household waste," or"any material . . . derived from households" is not deemed hazardous waste under the law,regardless of whether it exhibits hazard characteristics or contains listed hazardous wastes); seealso John C. Dernbach, Harnessing Individual Behavior To Address Climate Change: Optionsfor Congress, 26 VA. ENVTL. L.J. 107, 121 (2008) ("[F]ederal environmental laws are directedprimarily at large emitters and make relatively infrequent efforts to direct individualbehavior."); Michael P. Vandenbergh, From Smokestack to SUV: The Individual as RegulatedEntity in the New Era of Environmental Law, 57 VAND. L. REv. 515, 523-29 (2004) (reviewingtraditional regulation of industrial sources and illustrating how that regulation frequently fails tocapture environmental harms that arise from individual behaviors).

8. See Endangered Species Act (ESA) of 1973 § 9(a)(1)(B), 16 U.S.C. § 1538(a)(1)(B)(2006) (prohibiting the "taking" of endangered species); Clean Water Act § 404(a), 33 U.S.C.§ 1344(a) (2006) (requiring permits for the dredging or filling of navigable waters); see also infranotes 109-16 and accompanying text.

9. For a discussion of the difficulties that accompany implementing controls on individualsthrough the Clean Air Act's (CAA's) inspection and maintenance (I/M) program, throughsection 404 of the Clean Water Act (CWA), and through section 9 of the Endangered SpeciesAct of 1973 (ESA), see infra notes 79-97, 108-20, 129-41 and accompanying text.

10. See Lawrence Lessig, The New Chicago School, 27 J. LEGAL STUD. 661, 662-63 (1998)(listing these four "types of constraint[s]").

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aspect, the law uses its traditional means to direct an object ofregulation (whether the individual regulated, norms, the market, orarchitecture); in its indirect aspect, it regulates these other regulatorsso that they regulate the individual differently."" One can see thesedifferent constraints in operation in the field of air pollution. Apublic-information campaign designed to encourage people to ceasebackyard burning is a regulation of norms designed to influence, andthereby to regulate indirectly, individual behaviors. A subsidy forhybrid vehicles is a regulation of the market that indirectly regulatesthe harms imposed by individual driving behavior. Smart-growthzoning, designed to reduce car travel, is a direct regulation ofarchitecture that indirectly regulates individual driving behavior. Bycontrast, an environmental speed limit designed to reduce airpollution by reducing driving speeds is a direct regulation ofindividual behaviors.

A growing body of legal scholarship recognizes theenvironmental significance of individual behaviors and lifestyles,critiques the failure of environmental law and policy to speak directlyto individuals as sources of environmental harm, and suggests andevaluates strategies for capturing individual harms going forward.12

11. Id. at 666.12. See, e.g., CZARNEZKI, supra note 3 (detailing the environmental impacts of everyday

behaviors, reviewing existing attempts to change those behaviors, and suggesting policyapproaches for the future); Babcock, supra note 4 (observing that individuals are an importantsource of environmental problems, examining "why changing [norms] is a critical part of anycampaign to make individuals more environmentally responsible," and identifying "variousnorm- and behavior-changing tools"); Dernbach, supra note 7 (proposing ways forcongressional climate legislation to better engage individuals); Andrew Green, CreatingEnvironmentalists: Environmental Law, Identity and Commitment, 17 J. ENVTL. L. & PRAC. 1(2006) (considering the policy ramifications of theories of individual identity, choice, andcommitment development); Andrew Green, Norms, Institutions, and the Environment, 57 U.TORONTO L.J. 105 (2007) (assessing the potential for government to influence environmentalvalues and norms); Andrew Green, Self Control, Individual Choice, and Climate Change, 26 VA.ENVTL. L.J. 77, 81 (2008) (assuming that individuals "have values or norms that favorenvironmental action" but questioning their capacity to make choices consistent with suchvalues and norms); Andrew Green, You Can't Pay Them Enough: Subsidies, EnvironmentalLaw, and Social Norms, 30 HARV. ENVTL. L. REV. 407 (2006) (arguing that subsidies mayundermine environmental values); Katrina Fischer Kuh, Capturing Individual Harms, 35 HARV.ENVTL. L. REV. 155 (2011) (analyzing "the problem of individual harms through the lens ofenvironmental federalism" and "evaluat[ing] the potential role of local information, localgovernments, and local implementation in designing policy to capture individual environmentalharms"); Douglas A. Kysar & Michael P. Vandenbergh, Introduction: Climate Change andConsumption, 38 ENVTL. L. REP. 10,825 (2008) (noting the connection between consumptionand climate change, describing the historical lack of attention to consumption in environmentalpolicy, discussing the relationship between law and consumer preferences, and explaining why

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This scholarship cautions against relying solely on price signals,"product mandates," or other common methods of indirectly changingenvironmentally significant individual behaviors" or reducing the

consumption must now be addressed head-on by environmental policy); Albert C. Lin,Evangelizing Climate Change, 17 N.Y.U. ENVTL. L.J. 1135 (2009) (emphasizing the role ofvalues in behavioral choices and evaluating strategies for changing behaviors within theAmerican evangelical community); James Salzman, Sustainable Consumption and the Law, 27ENVTL. L. 1243 (1997) (examining "the historic, economic, and policy issues linking sustainableconsumption and environmental law" and "build[ing] an analytical framework to assess andidentify meaningful future roles for the law to play in moving toward the goal of sustainableconsumption"); Vandenbergh, supra note 7 (quantifying individuals' contributions toenvironmental degradation, identifying limitations of traditional command-and-control andeconomic-incentive-based regulation of individual behavior, and suggesting how "individualenvironmentally significant behavior can be changed through a mix of traditional and newapproaches"); Michael P. Vandenbergh, Order Without Social Norms: How Personal NormActivation Can Protect the Environment, 99 Nw. U. L. REV. 1101 (2005) (advocating personalnorm management to address "individual behavior in negative-payoff, loose-knit groupsituations"); Michael P. Vandenbergh, Jack Barkenbus & Jonathan Gilligan, Individual CarbonEmissions: The Low-Hanging Fruit, 55 UCLA L. REV. 1701 (2008) [hereinafter Vandenbergh etal., Individual Carbon Emissions] (identifying individual greenhouse-gas-emitting behaviors thatare the most susceptible to change and suggesting strategies for changing them); Vandenbergh& Steinemann, supra note 3 (demonstrating "that reducing individuals' greenhouse gasemissions in the United States can make a meaningful contribution to the global effort to reducethe risk of catastrophic climate change" and "argu[ing] that the law has a central role to play inreducing emissions attributable to individuals by activating the emerging norm of carbonneutrality" and integrating it with "traditional regulatory measures"); Michael P. Vandenbergh,Paul C. Stern, Gerald T. Gardner, Thomas Dietz & Jonathan M. Gilligan, Implementing theBehavioral Wedge: Designing and Adopting Effective Carbon Emissions Reduction Programs, 40ENVTL. L. REP. 10,547, 10,551-52 (2010) (making recommendations to policymakers about howbest to achieve reductions in harms from environmentally significant individual behaviors); JedS. Ela, Comment, Law and Norms in Collective Action: Maximizing Social Influence ToMinimize Carbon Emissions, 27 UCLA J. ENVTL. L. & POL'Y 93 (2009) (arguing for a nationalnorm campaign to reduce individual greenhouse-gas (GHG) emissions that would target highlyvisible behaviors).

13. See Vandenbergh et al., Individual Carbon Emissions, supra note 12, at 1704(describing studies suggesting that price signals may have only a limited effect on behavior);

Michael P. Vandenbergh, Amanda R. Carrico & Lisa Schultz Bressman, Regulation in the

Behavioral Era, 95 MINN. L. REV. 715, 765 (2011) (criticizing current GHG-control strategiesaimed at the household sector for "reflect[ing] strong assumptions about the influence of priceand thus often overlook[ing] other influences on behavior").

14. See ROBERT R. NORDHAUS & KYLE W. DANISH, PEW CTR. ON CLIMATE CHANGE,

DESIGNING A MANDATORY GREENHOUSE GAS REDUCTION PROGRAM FOR THE U.S. 45

(2003) (describing limitations on the effectiveness of product-efficiency mandates, including therebound and junker effects).

15. This term encompasses behaviors of individuals that, taken alone, have a negligibleimpact on the environment but that, in the aggregate, may significantly harm the environment.See Vandenbergh, supra note 7, at 518 ("We are polluters. Each of us. We pollute when we

drive our cars, fertilize and mow our yards, pour household chemicals on the ground or down

the drain, and engage in myriad other common activities. Although each activity contributes

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harms occasioned by such behaviors." The scholarship insteadadvocates use of a variety of policy tools, most importantlyinformational and norm campaigns." Notably, although mandates arethe most commonly used policy tool for controlling environmentalharms," and although they are recognized as having the potential toenhance norm campaigns aimed at environmentally significantindividual behaviors, 9 mandates on individual behaviors havereceived comparatively little attention as a policy tool for changing

minute amounts of pollutants, when aggregated across millions of individuals, the total amountsare stunning.").

16. See Thomas Dietz, Gerald T. Gardner, Jonathan Gilligan, Paul C. Stern & Michael P.Vandenbergh, Household Actions Can Provide a Behavioral Wedge To Rapidly Reduce USCarbon Emissions, 106 PROC. NAT'L ACAD. SC. 18,452, 18,453 (2009) (concluding that researchsuggests that a single policy tool will be insufficient to change individual and householdbehavior and that "interventions that combine appeals, information, financial incentives,informal social influences, and efforts to reduce the transaction costs of taking the desiredactions" will be most effective).

17. See, e.g., CZARNEZKI, supra note 3, at 3-4 (identifying six decisionmaking tools that areuseful for influencing the environmental effects of individual behavior, three of which involveinformational or norm approaches, and predicting that "[i]n the future, the cutting edge ofenvironmental law will focus on public awareness, informational mechanisms, economic andmarket incentives, and empirical inquiry into the appropriate target audience and product, thecorrect government level for action, and how to best influence social norms and supportcommunity initiatives"); Dernbach, supra note 7, at 123-24, 132, 144 (emphasizing that the"literature indicates that a variety of interventions directed at the same result are more likely tobe effective than fewer interventions" and highlighting the role of information); Vandenbergh& Steinemann, supra note 3, at 1724 (explaining the need to use both norm activation andtraditional regulatory measures, "includ[ing] taxes or subsidies, cap-and-trade schemes,standards that regulate the efficiency of consumer products made by industrial firms, andsupport for new technologies and infrastructure"); Ela, supra note 12, at 116-17 ("[W]hile thereis no doubt that convenience, economic incentives, and personal norms can outweigh socialinfluences in many cases, this does not mean that social influences have no effects in large-scaleenvironmental collective action problems. Such a conclusion is not only a mistake, but a mistakewith consequences, if it leads policymakers to pass up easily available opportunities to improvebehavior change through attention to social influences."); see also Vandenbergh et al., supranote 13, at 735-39 (criticizing rational-choice theory for causing energy-efficiency policies andprograms to focus on price mechanisms and technological solutions, while neglecting "policiesdesigned to encourage curtailment behavior, such as reducing motor vehicle idling, loweringhighway driving speeds, or setting back thermostats").

18. Command-and-control mandates on industrial point sources of pollution-for example,setting a maximum volume of pollutant that may be emitted or requiring the installation ofpollution-control technology-compose the traditional core of environmental law and policy.Vandenbergh, supra note 7, at 526-33.

19. See Kuh, supra note 12, at 193-95 (explaining how mandates might enhance normcampaigns); Vandenbergh, supra note 7, at 600 (concluding that the expressive effects ofcommand-and-control measures can enhance efforts to change individual behavior).

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environmentally significant individual behaviors.20 This Articleexamines one of the chief rationales offered in the literature for whymandates have limited utility as a method of regulating individualbehaviors: the intrusion objection. The intrusion objection positsgenerally that mandates on individual behaviors are politically

20. In his seminal article explaining the imperative to regulate, as well as the challenges toregulating individual behavior, From Smokestack to SUV: The Individual as Regulated Entity inthe New Era of Environmental Law, supra note 7, Professor Michael Vandenbergh details thedifficulties of trying to apply traditional command-and-control regulation to individuals, see id.at 554-56, 597-600. As damning as its critique of the use of mandates is, ProfessorVanderbergh's article nonetheless recognizes the possibility of a limited role for mandates:

To date, the experience with pure command and control approaches suggests that,at least as a first order measure, such approaches are not a viable option on their ownfor changing individual environmentally significant behavior. They may be moreeffective when combined with other regulatory instruments, or when used as a secondorder measure after information and other regulatory instruments have had aninfluence on heliefs [sic] and norms. In addition, the expressive effects of commandand control measures may play an important role in the regulation of individualbehavior.

Id. at 599-600; see also Vandenbergh et al., Individual Carbon Emissions, supra note 12, at 1705,1727, 1730 (outlining strategies for changing particular environmentally significant individualbehaviors not only by stressing informational regulation and economic incentives but also byincorporating "modest legal requirements" for individuals, such as the enforcement of fines forexcessive idling). But the identified difficulties regarding the application of mandates toindividuals resonate in the academic literature, which has largely focused on other strategies-primarily informational and norm management-for influencing individual behavior. See, e.g.,Babcock, supra note 4, at 123-24 (pointing out problems with command-and-control regulationof individual behavior and focusing on "the role norms play in influencing personal behaviorand why changing them is a critical part of any campaign to make individuals moreenvironmentally responsible"); Hope M. Babcock, Civic Republicanism Provides TheoreticalSupport for Making Individuals More Environmentally Responsible, 23 NOTRE DAME J.L.ETHIcs & PUB. POL'Y 515, 515-17 (2009) [hereinafter Babcock, Civic Republicanism] (notingthat regulation of individual "behavior [has] either failed or not been tried" and describing"how the overlapping strands of republican thought and norm development support thecreation of a new norm of personal environmental responsibility"); Hope M. Babcock, GlobalClimate Change: A Civic Republican Moment for Achieving Broader Changes in EnvironmentalBehavior, 26 PACE ENVTL. L. REv. 1, 5-6 (2009) [hereinafter Babcock, Global Climate Change](identifying difficulties with "legislat[ing] personal behavior" and concentrating instead on thedevelopment of environmental norms); Lin, supra note 12, at 1151-52 (observing that "directregulation of individual behavior is not a panacea" and that "[t]argeting behavioral norms offersa less coercive and potentially less costly alternative for achieving individual behavioralchange"); Vandenbergh, supra note 12, at 1103-04 ("Regulations that seek to direct personalbehavior by fiat are exceedingly unpopular, and they are often inefficient and costly toenforce.... Norms appear to provide a ready answer, at least on the surface."); Ela, supra note12, at 95 ("Law-and-norms theorists have long acknowledged the power of social influences todetermine individual behavior, and some have championed efforts to manage social norms insituations where enforcement difficulties, transaction costs or political realities render otherregulatory techniques-such as laws or economic incentives-inefficient or politicallyunpalatable. Such situations include many important environmental harms caused byindividuals. . . ." (footnote omitted)).


untenable, primarily because their enforcement invades privacy orother civil liberties in a manner unpalatable to the public. 2' ThisArticle contributes to the existing literature by offering a morenuanced understanding of the obstacle posed by the intrusionobjection and by suggesting that mandates might prove to be a moreuseful tool for changing individual behaviors than has previously beenrecognized.

The existing literature's relative inattention to direct mandateson environmentally significant individual behaviors stems from theperception that applying mandates to most environmentallysignificant individual behaviors would simply be infeasible. Twojustifications are usually offered for this position:22 First, enforcingmandates against individuals would be difficult because individualsare numerous and spread out and because they frequently engage inenvironmentally significant behaviors in private. Detection andenforcement against individuals would be of questionable technical

21. This Article employs the term "intrusion objection" to refer to the argument, raised inthe literature addressing environmentally significant individual behavior, that mandates onindividual behavior have limited utility as a policy tool because politicians will encounter toomuch public opposition in trying to adopt them and that, even if such mandates were adopted,they would engender public outcry and be repealed or disobeyed. As discussed in Part I.C, themost frequent explanation offered in the literature for this public opposition is the perceptionthat government regulation of these behaviors constitutes an invasion of privacy or an instanceof government overreaching more generally. This Article does not attempt to define "intrusion"per se, although some interesting empirical work has been done attempting to gaugeperceptions of intrusiveness in the context of the Fourth Amendment. See generally ChristopherSlobogin & Joseph E. Schumacher, Reasonable Expectations of Privacy and Autonomy inFourth Amendment Cases: An Empirical Look at "Understandings Recognized and Permitted bySociety," 42 DUKE L.J. 727 (1993) (examining "how society perceives the 'intrusiveness' ofgovernment investigative methods").

22. Of note, the use of mandates to change behavior generally has attracted significantcriticism. See, e.g., RICHARD H. THALER & CASS R. SUNSTEIN, NUDGE: IMPROVING DECISIONSABOUT HEALTH, WEALTH, AND HAPPINESS 14 (rev. and expanded ed. 2009) (defendinglibertarian paternalism as an alternative to mandates and arguing that "[i]n many domains,including environmental protection, family law, and school choice, . . . better governancerequires less in the way of government coercion and constraint, and more in the way of freedomto choose"); Edward K. Cheng, Structural Laws and the Puzzle of Regulating Behavior, 100 Nw.U. L. REV. 655, 659-62 (2006) (criticizing regulation by "fiat," or through mandates, on a varietyof grounds, including that limited enforcement undercuts deterrence, that widespreaddisobedience vests police officers with undue discretion, and that "[1]ow compliance ratescan ... harm the moral authority of the law"). Importantly, however, this Article does notadvocate mandates as the only or even the primary policy tool for changing individual behavior.It posits more modestly that mandates might, in some circumstances, prove a useful tool forchanging behavior, particularly in conjunction with other approaches, and it seeks to understandwhether-and, if so, how-mandates can be deployed in this limited manner with respect toenvironmentally significant individual behaviors.

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and administrative feasibility and would perhaps be prohibitivelyexpensive.23 Second, even if mandates could be enforced in a cost-effective manner, they would trigger insurmountable intrusionobjections, as individuals would not accept government constraints, orthe measures required to enforce them, in the context ofenvironmentally significant individual behaviors.24

The cost and administrative feasibility of imposing mandates onsome environmentally significant individual behaviors might,however, be less daunting, or at least might pose less of an obstacle,than has been widely anticipated. A host of new technologies make itincreasingly easier to identify and track environmental harms,including harms generated by individuals, through household energyconsumption and waste production.25 Many environmentally

23. See Vandenbergh, supra note 7, at 598 ("The thousands or millions of potentialregulatory targets . . . , the widespread belief that individuals are not significant pollutionsources, and the cognitive barriers to changing that belief all make individual behaviorextremely difficult to regulate through command and control instruments . . . . To the extentenvironmental harms caused by individuals are difficult to detect, enforcement is expensive andintrusive.").

24. See Babcock, Global Climate Change, supra note 20, at 5-6 ("Efforts to detect andultimately enforce against environmentally harmful individual activities . . . would be costly forthe government to carry out and would trigger enormous political resistance because of theinterference with individual liberty and invasion of privacy."); Lin, supra note 12, at 1152("Often, command-and-control regulation of individuals is politically infeasible because of itsperceived intrusiveness. . . . Command-and-control regulation of individuals can also beinefficient and costly to enforce because of the large number of regulatory targets, theirdispersed nature, and the difficulty of detecting environmental harms."); Vandenbergh, supranote 7, at 598-99 ("Even if sufficient resources were devoted to the [enforcement] effort, the[sic] intrusiveness of enforcing these regulations may undermine compliance or produce apolitical backlash. Empirical studies suggest that the difficulties of fully enforcing command andcontrol approaches against individual behavior present the [sic] risk of increasing, rather thandecreasing, environmental harms.").

25. See, e.g., THALER & SUNSTEIN, supra note 22, at 194 (summarizing Clive Thompson'sreview of Southern California Edison's creative efforts to encourage energy conservation,including the "Ambient Orb, a little ball that glows red when a customer is using lots of energybut green when energy use is modest"); JOSH WYATT, TEX. INSTRUMENTS, MAXIMIZINGWASTE MANAGEMENT EFFICIENCY THROUGH THE USE OF RFID 2-5 (2008), available athttp://www.ti.com/rfid/docs/manuals/whtPapers/wplf-hdx.pdf (describing chips that can beinstalled in trash receptacles and then used to monitor household waste activities, includingrecycling); Frederick R. Fucci with Clara Vondrich & Annette Nichols, Alternative EnergyOptions for Buildings: Distributed Generation, in GREEN REAL ESTATE SUMMIT 2010, at 337,346-47 (PLI Real Estate Law & Practice, Course Handbook Ser. No. 577, 2010) (describing howsmart-metering devices allow utilities and consumers to track power use by individualappliances); Saqib Rahim, They Don't Talk Trash, They Track It, N.Y. TIMES (Mar. 26, 2010),http://www.nytimes.com/cwire/2010/03/26/26climatewire-they-dont-talk-trash-they-track-it-76922.html (describing a Massachusetts Institute of Technology program that tracks individualitems of household trash and a device that monitors data about individual bicycle use);


significant individual behaviors-from solo commuting to the disposalof household waste-occur in contexts that have external aspects thatcan be detected from outside the home, thus facilitating enforcement.Piggybacking enforcement efforts on existing local regulation mayalso reduce administrative costs. 26 And, most importantly, forpurposes of enhancing norm campaigns, consistent enforcement maynot be necessary: the enactment of mandates may exert an expressiveeffect even in the absence of rigorous enforcement.2 7 It is thuspremature to dismiss individual mandates as technically oradministratively infeasible in the field of environmental regulation.

Yet even if the imposition of mandates on environmentallysignificant individual behaviors may in some circumstances be bothtechnically and administratively feasible, policymakers must stillcontend with a core objection to the use of mandates: the intrusionobjection. As Professor Hope Babcock suggests, mandates onenvironmentally significant individual behaviors may prove toointrusive to adopt and enforce:

Even if there were laws that reached these [environmentallysignificant individual] activities, there would be serious problemsenforcing them. Efforts to detect and ultimately enforce againstindividual activities that usually occur at home or in the immediately

Mandeep Singh, Pollution Watch Goes Online. . . , GULF DAILY NEWS (Jan. 31, 2011), http://www.gulf-daily-news.com/NewsDetails.aspx?storyid=297360 (describing "the world's firstcountry-wide online monitoring system to analyse pollution from factories and powerstations"-a system that was launched in Bahrain and that "entails installing microprocessor-based devices at selected companies" to "convey real time emission readings"); see also LyndseyLayton, The Rush Is On To Make Food Traceable, WASH. POST, Jan. 24, 2011, at Al (describinghow "in some stores [consumers] can wave a smartphone above an apple or orange and learninstantly where it was grown, who grew it and whether it has been recalled"); Barry Paddock,Shirts Act as Toxin Police: Grad Students Create Color-Changing Clothes That Detect Foul Air,N.Y. DAILY NEWS, Jan. 19, 2011, at 11 (describing shirts that change color when exposed topollution); Jyoti Madhusoodanan, Cell Phone Cameras Help Monitor Atmospheric BlackCarbon, MONGABAY.COM (Feb. 1, 2011), http://news.mongabay.com/2011/0201-blackcarbon-madhusoodanan.htm (describing efforts to equip cell phones with an application that wouldvisually reveal levels of black carbon and then to provide these cell phones to households in anattempt to encourage the adoption of clean-cook stoves).

26. Kuh, supra note 12, at 201-02.

27. See Babcock, supra note 3, at 148-49 ("A law by itself can influence the social meaningof actions and can influence what people think others might do."); Cass R. Sunstein, On theExpressive Function of Law, 144 U. PA. L. REV. 2021, 2032-33 (1996) ("With or withoutenforcement activity, such laws can help reconstruct norms and the social meaning of action.");Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903, 958-59 (1996)[hereinafter Sunstein, Social Norms] (observing that even rarely enforced laws shape socialnorms and meanings "because there is a general norm in favor of obeying the law" and becausethe laws "inculcate both shame and pride").

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surrounding area would trigger enormous political resistance, asthey would be seen as an interference with individual liberty and an

.28invasion of privacy.

This objection is often raised to explain why mandates onenvironmentally significant individual behaviors are not a promisingpolicy tool for capturing individual harms.' Although nowhereprecisely defined, the intrusion objection is most commonly presentedas being grounded in concerns about how government enforcementmight infringe civil liberties-most notably privacy'-although attimes it is characterized more broadly as a form of public or political

28. Babcock, supra note 4, at 123; see also Vandenbergh, supra note 7, at 598 ("To theextent environmental harms caused by individuals are difficult to detect, enforcement isexpensive and intrusive. Even if sufficient resources were devoted to the effort, the [sic]intrusiveness of enforcing these regulations may undermine compliance or produce a politicalbacklash.").

29. E.g., Babcock, supra note 4, at 124 (asserting that Congress is especialy unlikely to"amend our environmental laws to reach individual actions ... when regulation is sought in anarea where unrestricted individual choice has been (or is perceived to have been) the norm"(quoting Holly Doremus, Biodiversity and the Challenge of Saving the Ordinary, 38 IDAHO L.REV. 325, 346 (2002)) (internal quotation marks omitted)); Babcock, Civic Republicanism,supra note 20, at 515 ("For a variety of reasons, ranging from the difficulty of trying to identifyand then regulate all of these individual sources to the political backlash that might result if suchregulation was tried, efforts to control that behavior have either failed or not been tried.");Babcock, Global Climate Change, supra note 20, at 5-6 ("Efforts to detect and ultimatelyenforce against environmentally harmful individual activities, many of which occur in andaround the home, would be costly for the government to carry out and would trigger enormouspolitical resistance because of the interference with individual liberty and invasion of privacy.");Ann E. Carlson, Recycling Norms, 89 CALIF. L. REV. 1231, 1235 (2001) ("When numerouspeople must act to solve a collective problem and lack the economic incentive to do so,traditional government regulation, such as formal law, may be infeasible, ineffectual, orpolitically difficult."); Lin, supra note 12, at 1152 ("Often, command-and-control regulation ofindividuals is politically infeasible because of its perceived intrusiveness."); Vandenbergh, supranote 7, at 598 ("[The] intrusiveness of enforcing [command-and-control] regulations mayundermine compliance or produce a political backlash.").

30. Babcock, supra note 4, at 123 ("Efforts to detect and ultimately enforce againstindividual activities that usually occur at home or in the immediately surrounding area wouldtrigger enormous political resistance, as they would be seen as an interference with individualliberty and an invasion of privacy."); Babcock, Global Climate Change, supra note 12, at 5-6(observing that efforts to detect and enforce laws designed to reach environmentally significantbehaviors would be perceived as interfering with individual liberty and invading privacy andthat "trying to legislate personal behavior would generate enormous ill will and be politicallysuicidal"); Carlson, supra note 29, at 1235 (referencing privacy concerns); Lin, supra note 12, at1152 (observing that the "perceived intrusiveness" of the command-and-control regulation ofindividuals renders that regulation "politically infeasible"). See generally Daniel J. Solove, ATaxonomy of Privacy, 154 U. PA. L. REV. 477, 552-56 (2006) (offering a taxonomy of privacythat identifies "intrusion" as a type of privacy harm "involv[ing] invasions or incursions intoone's life" that "can be caused not only by physical incursion and proximity but also by gazes(surveillance) or questioning (interrogation)").

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resistance to government overreaching." Both the narrower, privacy-based intrusion objection and the broader objection of governmentoverreaching appear to be motivated by several factors: observationsof earlier, unsuccessful attempts to mandate changes inenvironmentally significant individual behaviors; cognitive limitationsthat may prevent individuals from recognizing the individually deminimis, but collectively significant, harms that their actions imposeon the environment; empirical studies suggesting that constraints onindividual behaviors can engender backlash; and commonsenseintuition about the limits of public tolerance for governmentintervention.3 2 Although it is not explicitly characterized as such, theintrusion objection constitutes a prediction by scholars about how thepublic and their elected representatives will respond to actual orproposed mandates on environmentally significant individualbehaviors.

In large measure, then, the intrusion objection rests on anunproven prediction about popular responses to mandates onenvironmentally significant individual behaviors. Importantly,however, the intrusion objection has yet to be subjected to criticalexamination that tests this prediction, and commentators have not yetcompletely assessed the source, scope, or intransigence of theintrusion objection or the obstacle that it may pose to the use ofmandates to change environmentally significant individual behaviors.A better understanding of if, when, how, and why mandates onenvironmentally significant behaviors may trigger fatal intrusionobjections could help to evaluate mandates as a policy tool forchanging individual behaviors and could also provide guidance abouthow mandates might be structured to avoid such objections.

This Article undertakes an initial effort to better define andunderstand the intrusion objection to the use of mandates to changeenvironmentally significant individual behaviors. Part I surveys priorand existing laws aimed at impacting individual behaviors andassociated environmental harms to develop a rough sense of whensuch regulations have and have not triggered intrusion objections.Part II then looks to some early privacy cases among the Court'ssubstantive due process jurisprudence for further guidance as to when

31. See Vandenbergh, supra note 7, at 520, 598-600 (referencing both the potentialintrusiveness required for enforcement and, more generally, the "public resistance to formal

legal regulation of individual behavior").

32. Babcock, supra note 4, at 123; Vandenbergh, supra note 7, at 598.

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and why government restrictions on individual freedom might giverise to intrusion objections. Although the intrusion objection arisesfrom the hypothesized public rejection of mandates, as opposed tothe constitutional infirmity of such measures, as explained in greaterdetail in Part II, adducing the constitutional boundaries imposed bysubstantive due process review can offer insight into when and whygovernment constraints on individuals are most likely to be viewed asunacceptable overreaching. This is so because under substantive dueprocess review, courts identify a fundamental right and forbidgovernment action when they determine that the action crossesdeeply rooted, traditional boundaries between governmentprerogatives and individual liberties." Part III builds on Parts I and IIto offer a clearer understanding of the intrusion objection andsuggests principles to guide the future development of mandates onenvironmentally significant individual behaviors, proposing as anexample an energy-waste ordinance designed to avoid intrusionobjections.

The Article concludes that the obstacle to direct regulation ofenvironmentally significant individual behaviors posed by theintrusion objection is both narrower and broader than presentlyrecognized. The obstacle posed by the intrusion objection is narrowerbecause although the enforcement of mandates against someprimarily in-home behaviors may occasion insurmountable privacy orrelated objections, other environmentally significant individualbehaviors can be and are regulated without triggering theseobjections. The obstacle posed by the intrusion objection is broaderbecause perceived government intrusion is just one of the costs, alongwith monetary costs and inconvenience, that regulation may imposeon individuals. The more salient dynamic is transparency; directregulation, as opposed to indirect regulation, tends to make all of thecosts of regulation to individuals more transparent, a phenomenonthat may invite public or political resistance.34 This resistance,however, is not limited to direct regulation nor should it be presumedto invariably present an insurmountable obstacle to the use of direct

33. See Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (explaining the Court's"established method of substantive-due-process analysis").

34. See generally Lessig, supra note 10, at 690 (describing how indirect regulation mayresult in indirection by "achiev[ing] a political end that citizens need not directly attribute to thegovernment's choice").

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mandates to regulate environmentally significant individualbehaviors.

I. SURVEYING REGULATIONS DESIGNED To REDUCE INDIVIDUALENVIRONMENTAL HARMS

Surveying existing regulation of, or past attempts to regulate,environmentally significant individual behaviors offers one way tobetter understand the intrusion objection. This Part provides a verybroad overview35 of the regulation of environmentally significantindividual behaviors. The overview charts the difference betweenindirect and direct regulation of environmentally significantindividual behaviors and attempts to discern when, and to someextent why, intrusion objections arise, particularly with respect todirect regulation. Section A identifies indirect methods as thepredominant method of seeking to change environmentallysignificant individual behaviors. Section B then identifies someinstances in which environmental law imposes-or has attempted toimpose-direct mandates on environmentally significant individualbehaviors. This Part concludes by summarizing when and howintrusion objections have arisen with respect to both indirect anddirect regulation of environmentally significant individual behaviorsand analyzing what this information reveals about the intrusionobjection as an obstacle to the use of mandates in this area.

A. Indirect Regulation of Environmentally Significant IndividualBehaviors Is Common and Widely Accepted

The government regularly nudges and prods Americans tobehave in ways that are better for the environment.3 6 It designates

35. As explained in Part I.C, this overview is necessarily incomplete. In particular, a morethorough accounting of historical efforts to control individual environmental behaviors mightprovide additional insight.

36. Interestingly, in their book NUDGE: IMPROVING DECISIONS ABOUT HEALTH,WEALTH, AND HAPPINESS, supra note 22, Professors Richard Thaler and Cass Sunstein criticizethe United States' traditional reliance on command-and-control measures to reduceenvironmental harms and recommend greater reliance on indirect regulation or "choicearchitecture," id. at 1-14. Specifically, they advocate economic-incentive systems-whichdirectly regulate the market-and feedback and information-which, although aimed in someinstances at individual behavior, do not mandate behavioral changes and perhaps more directlyregulate norms. Id. at 183-96. In the narrow context of regulating individual behavior, however,indirect regulations-in other words, nudges-are perhaps better characterized as thetraditional and predominant method of regulating individual behavior, whereas direct mandatesare less common and are used less frequently, in particular with respect to federal

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carpool lanes to reward those who share rides with a fastercommute.37 It subsidizes public transportation and the purchase ofhybrid vehicles to make cleaner travel less expensive." It permitsmanufacturers of energy-efficient products to market those productswith special government seals of approval' and polices greenmarketing claims to make sure that consumers are not misled aboutthe environmental attributes of the products they purchase.40 itsponsors public-service campaigns exhorting people to "Give a Hoot"and, more recently, to "Change a Light, Change the World" bybuying energy-efficient lighting; to "Turn Over a New Leaf" bybuying SmartWay cars, certified by the Environmental ProtectionAgency (EPA); and to "Plug-In To eCycling" by recycling cellphones.4 1 It charges bottle deposits to encourage recycling anddiscourage littering4 2 and bars large grocery stores from distributing

environmental policy. For example, in his book, EVERYDAY ENVIRONMENTALISM: LAW,

NATURE AND INDIVIDUAL BEHAVIOR, supra note 3, Professor Jason Czarnezki reviewsexisting efforts to influence the environmental impacts of a variety of everyday, individualbehaviors. Notably, these efforts are overwhelmingly indirect. See, e.g., id. at 41-47 (examiningefforts to increase household energy efficiency and identifying only one effort that could be bestcharacterized as a direct mandate on individual behavior: local limits on the use of leaf blowers

during ozone action days).37. See, e.g., 23 U.S.C. § 146 (2006) (authorizing funds for carpool and vanpool projects);

23 U.S.C. § 149(b)(5) (2006) (setting out requirements for a congestion-mitigation and air-quality-improvement program); 23 U.S.C. § 166 (2006) (expanding eligibility to use high-occupancy vehicle (HOV) lanes to hybrid and low-emission vehicles); see also CAL. VEH. CODE§ 5205.5 (West Supp. 2011) (enacting a decal program for energy-efficient vehicles to allowthem to use HOV lanes).

38. See, e.g., 26 U.S.C. § 30 (2006) (granting a tax credit for a percentage of the cost of

buying an electric car); S.C. CODE ANN. § 12-6-3377 (Supp. 2010) (granting a tax credit forqualified owners of fuel-efficient vehicles); W. VA. CODE ANN. 11-6D-1 (LexisNexis 2008 &Supp. 2011) (creating an alternative-fuel-motor-vehicles tax credit and an alternative-fuel-infrastructure tax credit); see also CZARNEZKI, supra note 3, at 47-49 (describing subsidyprograms for the purchase of hybrid cars).

39. See Energy Policy and Conservation Act, 42 U.S.C. § 6294a (2006) (establishing EnergyStar, "a voluntary program to identify and promote energy-efficient products and buildings");About Energy Star, ENERGY STAR, http://www.energystar.gov/index.cfm?c=about.abindex(last visited Feb. 14, 2012) (describing federal Energy Star programs).

40. See 16 C.F.R. §§ 260.1-.8 (2011) (setting forth the Federal Trade Commission's (FTC's)Guides for the Use of Environmental Marketing Claims). The FTC proposed revisions to theGreen Guides in 2010. Guides for the Use of Environmental Marketing Claims, 75 Fed. Reg.63,552 (proposed Oct. 15, 2010) (to be codified at 16 C.F.R. pt. 260).

41. See, e.g., Public Service Announcements, U.S. ENVTL. PROT. AGENCY, http://www.epa.gov/newsroom/psa.htm (last updated Apr. 19, 2011) (describing a number of EPA publicservice announcements).

42. See Beverage Container Recycling and Litter Reduction Act, CAL. PUB. RES. CODEH§ 14500-14599 (West 2007 & Supp. 2011); Beverage Container Deposit, IOWA CODE

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plastic bags to customers.43 It encourages household energy efficiencythrough a growing array of measures including tax rebates and pricingmechanisms. Examples of these latter strategies include chargingmore for energy use above a set baseline; implementingweatherization programs that make homes more energy efficient;installing smart meters; and orchestrating public-information andmarketing campaigns, including neighbor-to-neighbor education

44programs.The government also imposes upstream mandates that limit the

environmental harms occasioned by a variety of individual behaviors.A host of product mandates dictate the permissible amount of energythat may be used by a variety of appliances and products, includingspecifying a miles-per-gallon requirement for vehicles.45 Thesemandates are directed to the product manufacturers, but theyeffectively limit individual choice by restricting the types of productsthat are available to buy, thereby also limiting the environmentalharms occasioned by, for example, taking a drive or using arefrigerator. Green building and zoning codes similarly dictaterequirements for the built environment.6 These codes can be

§§ 455C.1-.17 (West 2004 & Supp. 2011); Returnable Container Act, N.Y. ENVTL. CONSERV.LAW §§ 27-1001 to -1019 (McKinney 2007 & Supp. 2011).

43. See Plastic Bag Reduction Ordinance, S.F., CAL., ENVIR. CODE §§ 1701-1709 (2011).44. The American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 123 Stat.

115, for example, included substantial funding for energy-efficiency programs, see id. div. A, tit.IV, 123 Stat. 138-40 (providing funding for "Weatherization Assistance Program[s]," the"manufacturing of advanced batteries and components," and "energy storage research," amongother informal programs); see also Elias L. Quinn & Adam L. Reed, Envisioning the SmartGrid: Network Architecture, Information Control, and the Public Policy Balancing Act, 81 U.COLO. L. REV. 833, 857-59 (2010) (listing a variety of energy-efficiency-promoting policy tools,including smart meters). For an overview of state and federal efficiency measures, see SARAHSCHINDLER, ENCOURAGING PRIVATE INVESTMENT IN ENERGY EFFICIENCY 1, 3-7 (2011). Seealso CAL. PUB. UTIL. CODE § 739 (West 2004 & Supp. 2011) (setting baseline quantities, rates,and disclosure requirements for energy usage); CAL. PUB. UTIL. CODE § 8366(a) (West Supp.2011) (mandating an evaluation of the impact of "[ilmplementation of new advanced meteringinitiatives").

45. For example, federal law sets minimum energy-efficiency requirements for a variety ofappliances, Energy Policy and Conservation Act, 42 U.S.C. §§ 6291-6309 (2006), in addition toaverage fuel-economy standards for new vehicles, 49 U.S.C. §§ 32901-32919 (2006).

46. Although in some sense, these requirements are mandates directed to individuals at thejuncture of construction or renovation, they do not directly operate on specific day-to-daybehaviors. Nevertheless, such regulations indirectly constrain behavior and are best viewed as aregulation of architecture, as opposed to individuals. Thus, for present purposes I characterizezoning and building codes primarily as a direct regulation of architecture that indirectlyregulates individuals. This characterization is, however, not entirely satisfying. In somecircumstances, zoning and building codes do apply directly to individuals and constrain use of

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designed to limit environmental harms by encouraging individuals toreduce their energy consumption. For example, mixed-use zoning candiscourage car use by locating residences within walking distance ofnecessary services, and the mandated use of energy-efficient buildingmaterials can reduce heat or air-conditioning demand.47

These are just a few examples that are part of a web of regulationdesigned to indirectly change individual behaviors and limitassociated environmental harms.48 These indirect methods ofinfluencing individual behaviors are common, and though they may

their property for environmental ends. Christopher Serkin's interesting article, Existing Usesand the Limits of Land Use Regulation, 84 N.Y.U. L. REV. 1222 (2009), which identifies andcritically examines the robust protections afforded to existing uses in property law, suggests analternative way to more precisely identify when zoning and building codes function to regulateindividuals directly rather than indirectly, id. at 1230 (refuting the "assum[ption] that there issomething different . . . about the unfairness associated with regulating existing as opposed tofuture uses"). Namely, such regulations might be viewed as indirect with respect to individualswho are prospective homeowners, renters, or residents-and who thus are likely to experiencethe codes primarily in terms of how they have already defined existing architecture-but directwhen they affect an existing property owner's use or renovation.

47. For a good account of the principles of green building and its evolution from relianceon informational/voluntary approaches to mandatory requirements, see Hirokawa, supra note 6,at 511-19, 545-46. See also Bos., MASS., ZONING CODE § 37-4 (2010) (requiring adherence tothe U.S. Green Building Council's LEED Certified standard as part of the private-developmentreview process); CZARNEZKI, supra note 3, at 43-45 (describing green building and zoningcodes); Patricia E. Salkin, Smart Growth and the Greening of Comprehensive Plans and LandUse Regulations, in LAND USE INSTITUTE: PLANNING, REGULATION, LITIGATION, EMINENTDOMAIN, AND COMPENSATION 437, 440-41 (ALI-ABA Course of Study, 2008) (promotingsuccessful local-government initiatives to curb global warming and encourage sustainabledevelopment).

48. Of course, in addition to these indirect regulations that have as an express purposeeither changing environmentally significant individual behaviors or limiting the environmentalharms arising from those behaviors, there is an enormous volume of regulation that, though notaimed at influencing individual behaviors or their associated harms, nonetheless significantlyshapes-and frequently increases-the environmental harms imposed by individuals. SeeCZARNEZKI, supra note 3, at 48-49, 66-68 (identifying policies that encourage individuallifestyles and decisions that are harmful for the environment, such as highway funding andagricultural subsidies); John Dernbach, Creating the Law of Environmentally SustainableEconomic Development, 28 PACE ENVTL. L. REV. 614, 635 (2011) (discussing the negativeenvironmental impacts of policies that encourage unsustainable development, including publicfunding for highways, single-use zoning, and the federal mortgage-interest tax deduction).Examples include everything from oil-energy-industry subsidies, see NAT'L COMM'N ONENERGY POLICY, ENDING THE ENERGY STALEMATE: A BIPARTISAN STRATEGY TO MEETAMERICA'S ENERGY CHALLENGES 6 (2004), to agriculture policy, see Carrie Lowry La Seur &Adam D.K. Abelkop, Forty Years After NEPA's Enactment It Is Time for a ComprehensiveFarm Bill Environmental Impact Statement, 4 HARV. L. & POL'Y REV. 201, 204-10 (2010), andtransportation and housing policies, see John Turner & Jason Rylander, Land Use: TheForgotten Agenda, in THINKING ECOLOGICALLY 60, 64 (Marian R. Chertow & Daniel C. Estyeds., 1997).


trigger public opposition, such opposition is not held up as a majorimpediment to the use of indirect regulation generally.49 The tendencyto identify the intrusion objection as a significant obstacle primarilyor exclusively with respect to direct mandates persists even thoughindirect measures may require the collection of personal information"oand may spur objections that sound quite like intrusion objections."The installation in California of smart meters, for example, whichcollect detailed information about an individual's electricity usage inan effort to change societal norms and encourage voluntary changesin energy use by individuals, has occasioned opposition on the groundthat the meters constitute a "breach of privacy."52

Similarly, the federal statutory scheme of environmentalprotection in large measure reaches individual behaviors andassociated environmental harms only indirectly." The core provisionsof major American environmental statutes impose restraintsprimarily on larger entities engaged in resource extraction-wastecreation as a result of manufacturing or production, for example-or

49. One specific form of indirect regulation aimed at individual behaviors-taxes or othersignificant price increases-is generally recognized as giving rise to often-insurmountable publicopposition. See NORDHAUS, supra note 14, at 16 (describing the difficulties in gaining publicsupport for direct increases in the price of energy); Vandenbergh, supra note 7, at 604(observing that taxes "are politically radioactive in the United States to such an extent that theyare not of more than theoretical interest, at least in the near term"); Vandenbergh &Steinemann, supra note 3, at 1703-04 (observing that, like direct regulation, taxes "havegenerated a fierce backlash in the past").

50. One scholar suggests, as an innovative approach to spur the development of energy-saving norms, that "Congress could require the collection and publication of information onindividuals' energy footprint." John Dernbach, Overcoming the Behavioral Impetus for GreaterU.S. Energy Consumption, 20 PAC. MCGEORGE GLOBAL BUS. & DEV. L.J. 15,36 (2007).

51. Felicity Barringer, New Meters Stir Fears for Health and Home, N.Y. TIMES, Jan. 31,2011, at A12 (citing privacy concerns about the collection of home-energy-use data by a utilitycompany using real-time smart meters).

52. Id. Notably, in Maryland, where the installation of smart meters was at first linked topeak-demand pricing, the proposal attracted significant opposition from consumer groupsconcerned about rising electricity bills and was initially rejected by the Maryland Public ServiceCommission, although it was ultimately approved in revised form. Vandenbergh et al., supranote 13, at 739 & n.97.

53. See Vandenbergh, supra note 7, at 597-98 ("[T]he vast majority of the command andcontrol regulations that seek to reduce environmental harms from individuals take the form ofemissions controls directed at the industrial facilities that produce consumer products orrestrictions on the environmentally harmful characteristics of consumer products, whetherautomobiles, thermostats, or home cleansers."); see also Scott D. Anderson, Comment,Watershed Management and Nonpoint Source Pollution: The Massachusetts Approach, 26 B.C.ENVTL. AFF. L. REv. 339, 367, 385 (1999) ("By relying primarily on regulation of industrial andmunicipal discharges, the general public has only indirectly contributed to cleaning up ourwaterways through higher consumer prices and sewer bills.").

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waste disposal.54 Ultimately, these entities only engage in theseresource-extracting and waste-creating processes to satisfy thedemands of individual consumption." By limiting the environmentalharms associated with manufacturing and producing these products,the regulatory regime indirectly limits the environmental harms thatindividuals contribute to by consuming those products."' For example,a host of environmental statutes impose restrictions on the harvestingof trees and the process of manufacturing paper, including theultimate disposal of generated waste.17 By limiting the environmentalharm generated by these processes, the statutes also limit theenvironmental harm chargeable to individuals when they use paper. Itis fair to characterize environmental law and policy as imposing directregulation primarily on larger, institutional entities while addressingindividual behaviors primarily through indirect regulation."

But some laws-in particular local laws-do directly regulateenvironmentally significant individual behaviors. Examples of theselaws, and explanations of whether and why they have triggeredintrusion or other public objections, are considered in the nextSection.

54. See Vandenbergh, supra note 7, at 523-36, 565-67, 577-79 (noting that the government"rarely, if ever," enforces environmental statutes against individuals and instead uses "voluntarycollection stations" and "public information campaigns" to alter individual behavior).

55. See Salzman, supra note 12, at 1244-45, 1255-56 (lamenting the law's focus on pollutioncontrol and explaining the need to address consumption, but noting that regulating consumptionis difficult).

56. Id. at 1267-68 (discussing environmental law's narrow focus on the patterns ofconsumption and its failure to address levels of consumption).

57. The Forest Service regulates the harvest of timber on federal lands under the NationalForest Management Act of 1976, 16 U.S.C. § 1604(g)(3) (2006), and paper mills must usuallyobtain permits under the CWA, 40 C.F.R. pt. 122 (2011), and the CAA, 40 C.F.R. §§ 60.280-.285, pt. 63 (2011).

58. Notably, this reliance on indirect regulation and the paucity of direct regulation in thecontext of environmental controls directed at individuals may be unusual. In his articleStructural Laws and the Puzzle of Regulating Behavior, supra note 22, Professor Edward K.Cheng posits that direct regulation of behavior-what he terms "fiat"-is the dominant methodemployed to control behavior in other contexts, including criminal law, see id. at 715("Historically, attempts to change behavior have been addressed primarily through fiat-legalprohibitions with accompanying penalties for non-compliance.").

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B. Direct Regulation of Environmentally Significant IndividualBehaviors

A variety of local ordinances and state laws directly regulateenvironmentally significant individual behaviors.59 Manymunicipalities require that individuals sort their trash to separate outrecyclable, and sometimes even compostable, waste, and somejurisdictions impose bans on the disposal of certain types of waste."Local and state burn laws61 restrict or bar individuals from burningsolid fuels-for example, by limiting or prohibiting the use offireplaces or wood stoves.62 Numerous jurisdictions limit the amountof time that individuals may idle vehicles or other emission-generating equipment." Prohibitions on littering are ubiquitous."6

59. For an overview of some such measures, see Vandenbergh, supra note 7, at 599 &n.321.

60. E.g., S.F., CAL., ENVIR. CODE §§ 1901-1912 (2011) (requiring the separation of trash,compostable materials, and recyclables); NANTUCKET, MASS., CODE OF ORDINANCES §§ 125-2,-5 (2009) (same); N.Y.C., N.Y., RULES tit. 16, § 1-08(g) (2009) ("[R]esidents ... of residentialbuildings . . . shall . . . separate from other materials designated recyclable materials that are

required to be recycled and shall place such separated materials in the appropriatecontainers...."); PITTSBURGH, PA., CODE OF ORDINANCES § 619.06(c) (2011) (requiring theseparation of trash and recyclables); SEATTLE, WASH., MUN. CODE § 21.36.083 (2011) (same);see also CZARNEZKI, supra note 3, at 50 n.55 (citing waste-disposal bans in Arizona,Connecticut, Idaho, and Maine); Vandenbergh, supra note 7, at 567 n.190 (identifying statedisposal bans and observing that disposal bans became more common during the 1990s).

61. State and local burn laws have long existed to address both local air pollution and fireconcerns. See, e.g., CAL. PUB. RES. CODE. § 4423 (1972). They are now widespread, adopted insome instances as part of state implementation of federal CAA requirements. See, e.g.,Approval and Promulgation of State Implementation Plans: Idaho, 61 Fed. Reg. 27,019, 27,019-23 (May 30, 1996) (codified at 40 C.F.R. pt. 52) (describing modifications to Idaho's burn lawsto satisfy CAA requirements).

62. E.g., IDAHO ADMIN. CODE r. 58.01.01.317 (2011); WASH. ADMIN. CODE §§ 173-433-010 to -200 (2010); Sacramento Cnty., Cal., Mandatory Episodic Curtailment of Wood andOther Solid Fuel Burning §§ 100-400 (2011).

63. E.g., SACRAMENTO, CAL., CITY CODE §§ 8.116.010-.110 (2011) (requiring private-property owners to ensure that they do not allow commercial vehicles to idle on their propertyfor more than five minutes and prohibiting individuals from idling certain gasoline-poweredequipment, marine vessels, and off-road equipment); DENVER, COLO., CODE OF ORDINANCES§ 4-43 (2011) (prohibiting idling for more than five minutes, with a few exceptions); N.Y.C.,N.Y., ADMIN. CODE § 24-163 (2009) ("No person shall cause or permit the engine of a motorvehicle, other than a legally authorized emergency motor vehicle, to idle for longer than threeminutes . . . ."); BURLINGTON, VT., CODE § 20-55(e) (2011) ("No person shall leave idling formore than three (3) minutes any motor vehicle in any area of the city [with certain limitedexceptions]."). As with burn laws, restrictions on idling are sometimes enacted to comply withfederal CAA requirements. See, e.g., TEX. NATURAL RES. CONSERVATION COMM'N, RULELOG No. 2000-011-SIP-AI, REVISIONS TO THE STATE IMPLEMENTATION PLAN (SIP) FOR THECONTROL OF OZONE AIR POLLUTION app. J (2000), available at http://www.tceq.texas.gov/

1132


Municipalities also commonly adopt water-conservation ordinancesthat prohibit or limit the time or duration of outdoor water use,require the use of hoses that have an automatic shut-off nozzle, barthe washing of impervious surfaces, or require the installation of low-flow fixtures before the sale or major modification of a residentialhome." Many jurisdictions have tree-protection ordinances that limitthe circumstances under which an individual may cut down a tree,even on private property." A number of states have recently enactede-waste recycling laws that prohibit individuals from disposing ofcertain types of electronics as household waste destined for municipallandfills.' New Jersey recently adopted strict rules governing the

airquality/sip/dec2000hgb.html (describing State Implementation Plan (SIP) modifications,including enhanced idling restrictions).

64. E.g., Florida Litter Law, FLA. STAT. § 403.413 (2010); LINCOLN CNTY., OR., ENVIR. &HEALTH CODE § 2.1505 (2011) (setting forth littering prohibitions).

65. S.F., CAL., HOUS. CODE H§ 12A05-12A10 (2011) (requiring a qualified inspector todetermine whether fixtures must be replaced and whether showers, faucets, and toilets are low-

flow versions before sale); TAMPA BAY, FLA., CODE § 26-97(c) (2011) (providing that year-

round, residential users are limited to using hoses that have an automatic shut-off nozzle; to

watering outdoors two days per week, depending on what number their address ends in; and to

watering during particular hours of the day); RiO RANCHO, N.M., CODE §§ 52.01-.09 (2011)

(prohibiting water waste-the "non-beneficial use" of water-and fugitive water-water thatruns from one property to another or to a public right of way-but excluding storm-water

runoff); EL PASO, TEX., CODE § 15.13.020 (2011) (setting forth a year-round restriction that

residents with even-numbered addresses may only water their lawns and outdoor plants with

public water on Tuesdays, Thursdays, and Saturdays, whereas odd-numbered addresses may

only do so on Wednesdays, Fridays, and Sundays; and prohibiting all outdoor watering between

the hours of 10 a.m. and 6 p.m. from April 1 to September 30); EL PASO, TEX., CODE§ 15.13.030(B) (prohibiting the waste of water, a violation that includes allowing the runoff of

water from a residential property to form a pool in a street, alley, or ditch, or to run into a storm

drain; failing to repair a leak within five days of discovering it; or washing impervious surfaces

such as sidewalks, paved driveways, or patios except in an emergency); Outside Water Usage,

WATER AUTH. OF W. NASSAU CNTY., http://www.wawnc.org/cm/index.php?option=comcontent&task=view&id=57&Itemid=26 (last visited Feb. 14, 2012) (prohibiting outdoor water

use from 10 a.m. to 4 p.m. year-round and providing that odd-numbered addresses may water

only on odd-numbered days and even-numbered addresses may only water on even-numbered

days).66. For a detailed discussion of tree-protection ordinances, see Keith H. Hirokawa,

Sustaining Ecosystem Services Through Local Environmental Law, 28 PACE ENVTL. L. REV.760, 805-07 (2011). See also ATLANTA, GA., MUN. CODE §§ 158-28, -101 to -102 (2011) (placing

strict limits on the removal of trees from public property and setting out the justification for that

policy).67. CONN. GEN. STAT. § 22a-636 (2011) (providing that, as of January 2, 2011, no person

may dispose of covered electronic devices in the garbage); N.J. STAT. ANN. § 13:1E-99.109(West 2011) (providing that, beginning January 1, 2011, disposal of classified electronic waste ashousehold trash is prohibited); N.Y. ENVTL. CONSERV. LAW § 27-2611(3) (McKinney 2011)

(prohibiting individuals from disposing of electronic waste in solid-waste-management facilities

beginning in 2015).


content and application of fertilizers." And some jurisdictions areeither considering or have recently adopted bans on felt-soled bootsand waders; those bans are aimed at reducing the spread of invasivespecies, which can attach to that common fishing gear.

These laws are generally enforced through fines; some authorizeenforcement-related inspections-for example, of trash containers-and some water-conservation ordinances even authorize cutting offwater service for repeat violators.70 One unusual enforcementmechanism is the use of radiofrequency identification (RFID) tags tomonitor and track residential garbage volume and/or recycling rates."Notably, this method of enforcement has occasioned accusations ofgovernment snooping.72 Although anti-littering ordinances, recyclingrequirements, and other mandates on individuals are not alwayswelcomed, their ubiquity and longevity suggest that direct regulation

68. Act of Jan. 5, 2011, ch. 112, § 2(a), 2010 N.J. ALS 112 (N.J.) (LEXIS) (codified at N.J.STAT. ANN. § 58:10A-62(a) (West Supp. 2011)) ("No person shall: (1) apply fertilizer to turfwhen a heavy rainfall, as shall be defined by the Office of the New Jersey State Climatologist atRutgers, the State University, is occurring or predicted or when soils are saturated and apotential for fertilizer movement off-site exists; (2) apply any fertilizer intended for use on turfto an impervious surface, and any fertilizer inadvertently applied to an impervious surface shallbe swept or blown back onto the target surface or returned to either its original or anotherappropriate container for reuse; or (3) apply fertilizer containing phosphorus or nitrogen to turfbefore March 1st or after November 15th in any calendar year, or at any time when the groundis frozen, except as provided otherwise in subsection b. of this section.").

69. See VT. STAT. ANN. tit. 10, § 4616 (2011) ("It is unlawful to use external felt-soledboots or external felt-soled waders in the waters of Vermont, except that a state or federalemployee or emergency personnel, including fire, law enforcement, and EMT personnel, mayuse external felt-soled boots or external felt-soled waders in the discharge of official duties.");Preliminary Summary, ALASKA BD. OF FISHERIES, http://www.adfg.alaska.gov/index.cfm?adfg=lib.forcedownload&filepath=/static/regulations/regprocess/fisheriesboard/pdfs/2009-2010/statewide20lO/&filename=statewide-finfish-2010-summ.pdf&contenttype=application/pdf (lastvisited Feb. 14, 2012) (recording the adoption of a felt-soled wading-boot ban beginning January1, 2012); see also Felicity Barringer, Anglers Bring Unwanted Guests to Rivers, INT'L HERALD

TRIB. (Paris), Aug. 17, 2010, at 4 (describing the conservation rationales for the bans andmentioning the Alaska and Vermont bans as well as a proposed ban in Maryland).

70. S.F., CAL., ENVIR. CODE § 1908 (2011) (authorizing inspection of trash receptacles andfines of up to $100 for households that fail to properly sort their recyclables or compostables);Rio RANCHO, N.M., CODE § 52.07 (2011) (establishing a scheme of increasing fines for repeatoffenders and authorizing water service to be discontinued if the fines are not paid).

71. See Benjamin Lanka, Radio Tags To Track Recycling Carts' Use, J. GAZETTE (FortWayne, Ind.), Oct. 17, 2010, at 4 (describing the use of RFID chips by different communities).

72. See Wendy McElroy, Big Brother Is Watching You Recycle, 60 FREEMAN 17, 17-18(2010) (recognizing that the strongest objections against the monitoring are based upon privacyconcerns); Editorial, Tattletale Trash Cans, WASH. TIMES, Aug. 24, 2010, at B2 (stating that thegovernment is spying on trash).

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of some environmentally significant individual behaviors enjoys13

general acceptance in many areas.Although not aimed primarily at individual behaviors, a number

of federal statutes, sometimes implemented by state and localauthorities through cooperative-federalism arrangements, alsodirectly regulate environmentally significant individual behaviors. Asillustrated in later Sections, some of these efforts have encounteredsignificant difficulties.74

1. Clean Air Act. Under the Clean Air Act's (CAA's) 7 1

cooperative-federalism arrangement, most states are afforded theauthority to decide how to achieve federal national air-qualitystandards within their boundaries by obtaining federal approval ofState Implementation Plans (SIPs). 7 In determining which sources totarget for emission reductions sufficient to achieve national air-quality standards, states have sometimes chosen-or have beencompelled by the magnitude of needed emission reductions"-to

73. See generally El Paso Launches Its Own Water Rationing Program, TULSA WORLD,Apr. 4, 1991, at A16 (describing the reaction of El Paso residents to water-use restrictions);Suzanne Gamboa, El Paso Begins Drive To Save Water, DALL. MORNING NEWS, Apr. 2, 1991,at 13A (reporting the local response to conservation measures); Edmund Archuleta, El Paso

Helps Itself Through Water Conservation, TEXAS WATER MATTERS (Oct. 2, 2005), http://www.texaswatermatters.org/pdfs/news_270.pdf (reciting the benefits of water conservation to El Paso

residents); Eric Schmitt, Nassau County Learns To Live with Less Water, N.Y. TIMES, Aug. 8,1988, at B23 (describing the reaction of Nassau County residents to water restrictions); Aubin

Tyler, The Case for Mandatory Composting, Bos. GLOBE MAG., Mar. 21, 2010, http://www.

boston.com/bostonglobe/magazine/articles/2010/03/21/the-Case-formandatory-composting(commenting on the success of the Nantucket composting ordinance and observing that "[f]or

island residents, it's now second nature to divide trash into two streams: recycling and organic

waste").

74. See Vandenbergh, supra note 7, at 520 (reviewing efforts to regulate individualbehaviors, primarily under federal environmental statutes; noting that "[tihe same pattern has

occurred in area after area: regulators have sought to impose restrictions on individual behavioronly rarely, and when they have done so, the restrictions have been unpopular and have

provoked a public backlash;" and concluding that "[p]erhaps as a result, few regulations focusdirectly on individual behavior, and those that do are rarely enforced").

75. Clean Air Act (CAA), 42 U.S.C. §§ 7401-7671q (2006).

76. Id. § 110, 42 U.S.C. § 7410 (establishing the guidelines for SIPs).

77. See generally Train v. Natural Res. Def. Council, 421 U.S. 60, 99 (1975) (confirmingthat states retain the authority to choose how to reduce emissions to meet national ambient-air-

quality standards (NAAQS) when developing SIPs under the CAA).

78. Notably, states retain the authority to require emission reductions even when those

reductions are claimed to be economically or technologically impossible for regulated entities.

See, e.g., Union Elec. Co. v. EPA, 427 U.S. 246, 269 (1976) (holding that the EPA administratorneed not consider economic or technological feasibility in reviewing SIPs).


regulate individual behaviors that contribute to air pollution." Burnlaws and idling restrictions are thus sometimes enacted to satisfyCAA requirements."o Another notable example is the'environmental' speed limit"" imposed by the Texas Commission on

Environmental Quality in an effort to reduce emissions and satisfyCAA requirements.82 As characterized in the local press, "Themeasure was vilified from the start and drew heated negativeresponse from drivers."8' The initial speed-limit reductions wererepealed after less than seven months when modeling showed that thereduced speed limits yielded a relatively insignificant reduction inemissions,' and the Texas legislature passed legislation prospectivelybarring the Texas Transportation Commission from approving newenvironmental speed limits going forward. Nevertheless, some five-miles-per-hour speed-limit reductions remain in effect in some Texas

*85counties.

79. Nonattainment areas, for example, may be required in some circumstances to include

transportation-control measures in their SIPs. CAA § 182, 42 U.S.C. § 7511a. Transportation-control measures can include direct regulation of individuals: for example, trip-reduction

ordinances or vehicle-idling restrictions. Id. § 108(f), 42 U.S.C. § 7408(f); see also 40 C.F.R.

§ 93.101 (2011) (defining a transportation-control measure as one "of the type[] listed in section

108 of the CAA, or any other measure for the purpose of reducing emissions or concentrationsof air pollutants from transportation sources by reducing vehicle use or changing traffic flow or

congestion conditions").

80. See supra notes 61-63.81. Tony Freemantle, 55 MPH Begins Signing Off Freeways This Week, HOUS. CHRON.,

Nov. 5, 2002, at Al.82. The SIP revision authorizing environmental speed limits is available from the Texas

Commission on Environmental Quality. SIP Revision: Dallas-Fort Worth, April 19, 2000, TEX.

COMM'N ON ENVTL. QUALITY, http://www.tceq.texas.gov/airquality/sip/apr2000dfw.html (last

visited Feb. 14, 2012); see also Approval and Promulgation of Implementation Plans; Texas; the

Dallas/Fort Worth Nonattainment Area; Ozone, 66 Fed. Reg. 4756, 4759-60 (proposed Jan. 18,2001) (to be codified at 40 C.F.R. pt. 52) (outlining Texas's "Emission Control Strategies,"

including new fuel regulations, vehicle-inspection requirements, and speed-limit reductions).

83. Freemantle, supra note 81.84. Id.85. See TEX. TRANSP. CODE ANN. § 545.353(j) (West 2011) ("The commission may not

determine or declare, or agree to determine or declare, a prima facie speed limit for

environmental purposes on a part of the highway system."); see also Vandenbergh, supra note 7,at 556 ("[Sltate and local efforts to reduce emissions by reducing speed limits have been hugely

unpopular."). More information about these environmental speed limits is available from the

North Central Texas Council of Governments, 1-Hour Attainment Demonstration SIP: Speed

Limit Reduction Measure, N. CENT. TEX. COUNCIL OF Gov'TS, http://www.nctcog.org/trans/air/sip/previous/esl/index.asp (last updated Dec. 12, 2011), and from the Texas Commission onEnvironmental Quality, Vehicular Speed-Limit Reduction, TEX. COMM'N ON ENVTL. QUALITY,http://www.tceq.texas.gov/airquality/mobilesource/speedlimit.html (last visited Feb. 14, 2012).

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The EPA also possesses statutory authority to mandate theinclusion of some specific types of controls on individual behaviors instate SIPs." In some circumstances, the EPA requires states toinclude vehicle-inspection and maintenance (I/M) programs in theirSIPs when, for example, regions have failed to meet air-qualitystandards.8 ' Although state I/M programs vary with respect to boththe individuals covered and the other implementation details-forexample, whether the checks are annual or biennial, or where thechecks can be conducted-the core element of an I/M program is therequirement that covered individuals test the tailpipe emissions fromtheir vehicles.' Owners usually cannot obtain required registrationsfor their vehicles unless they pass the emissions test, and thus,vehicles that fail required emissions tests must generally be repairedor even scrapped." In short, I/M programs impose significantrestraints directly upon individuals: first, individuals must test theircars to obtain permission to drive them, and second, individuals maynot drive their cars if they emit pollutants above the prescribed level.

Adducing the significance of these I/M programs for purposes ofbetter understanding the intrusion objection is complicated. TheEPA's efforts to require I[M programs, initiated in 1977,9 haveoccasioned over thirty years of controversy and disputes abouteverything from the EPA's authority to require states to implementthese programs," to the appropriate design and stringency of I/Mprograms,9 to the efficacy of those programs that have beenimplemented.93 States, envisioned in the CAA's cooperative-

86. Absent specific statutory authority, however, EPA may not generally prescribe theexact measures to be incorporated into a SIP to meet the NAAQS. See, e.g., Virginia v. EPA,108 F.3d 1397, 1415 (D.C. Cir. 1997) (invalidating an EPA SIP call).

87. E.g., Clean Air Act (CAA) §§ 182, 187, 42 U.S.C. §§ 7511a, 7512a (2006); 40 C.F.R.§ 51.350 (2011) (outlining the applicability of 1/M plans).

88. See 40 C.F.R. §§ 51.351-353 (demonstrating the variability of SIP plans).89. Id. § 51.361 (describing the required I/M enforcement mechanisms).90. Thomas 0. McGarity, Regulating Commuters To Clear the Air: Some Difficulties in

Implementing a National Program at the Local Level, 27 PAC. L.J. 1521, 1554 & n.211 (1996).91. For example, the EPA initially sought to require states to issue I/M regulations, but it

subsequently changed its approach after numerous legal challenges. See EPA v. Brown, 431 U.S.99, 104 (1977) (per curiam) (vacating and remanding cases due to an EPA policy change).

92. E.g., Natural Res. Def. Council v. EPA, 22 F.3d 1125, 1129 (D.C. Cir. 1994) (upholdingEPA regulations promulgating guidelines for enhanced state vehicle I/M programs).

93. See McGarity, supra note 90, at 1535-1618 (detailing the fraught implementation ofvehicle I/M requirements); Arnold W. Reitze, Jr. & Barry Needleman, Control of Air Pollutionfrom Mobile Sources Through Inspection and Maintenance Programs, 30 HARV. J. ON LEGIS.409, 414-19 (1993) (commenting on states' recalcitrance, court challenges to the EPA's

2012] 1137


federalism scheme as the chief implementers of the CAA'srequirements,94 proved recalcitrant with respect to the establishmentand operation of I/M programs.95 One source of this recalcitrance waspublic resistance to the expense, inconvenience, and perceivedheavyhandedness of I/M requirements.96 The years saw repeatedimplementation delays," judicial98 and legislative limits placed on theEPA's authority,9 and the gradual weakening of the EPA'srequirements for I/M programs.o

It is tempting to explain the difficulties attending theestablishment and operation of I/M programs as straightforwardevidence of the intrusion objection at work. An observer adoptingthat account would say that a significant restraint on environmentallysignificant individual behaviors was perceived as unacceptablyintrusive, occasioned public outcry, and was politically stymied atevery turn. A fuller explanation, however, suggests that such anaccount would be incomplete, if not incorrect. First, although it is truethat IM program requirements sparked public outcry, individualsappear to have objected primarily to the inconvenience of therequirements, as opposed to the government invasion of privacy or

authority to require I/M programs, and the EPA's relaxation of I/M requirements in light ofstate resistance). See generally Jerome Ostrov, Inspection and Maintenance of AutomotivePollution Controls: A Decade-Long Struggle Among Congress, EPA and the States, 8 HARV.

ENVTL. L. REV. 139 (1984).

94. See McGarity, supra note 90, at 1619 (explaining the need for state cooperation inimplementing I/M programs).

95. Id. at 1619-25.96. See Ora Fred Harris, Jr., The Automobile Emissions Control Inspection and

Maintenance Program: Making It More Palatable to "Coerced" Participants, 49 LA. L. REV.1315, 1347 (1989) (discussing various rationales for public objections to the I/M program andrecommending the "use of economic incentives to stimulate popular support for the I/Mprogram").

97. E.g., Act of Nov. 15, 1990, Pub. L. No. 101-549, § 101(c), 104 Stat. 2399, 2406-08(codified at 42 U.S.C. § 7410 (2006)) (extending the deadlines for SIP submittals). For anextensive discussion of the troubled implementation of the I/M program, see McGarity, supranote 90, at 1535-1618.

98. E.g., Brown v. EPA, 566 F.2d 665 (9th Cir. 1977) (finding that the EPA did not havethe authority to impose sanctions on California for failing to adopt an EPA-developed I/Mprogram). For an extensive discussion of this and other court challenges to the EPA'sadministration of the I/M program, see McGarity, supra note 90, at 1535-1618.

99. For example, Congress barred the EPA from imposing construction moratoria onstates that had failed to meet a December 31, 1982, deadline to show how they would attain theNAAQS. Department of Housing and Urban Development-Independent AgenciesAppropriation Act, 1984, Pub. L. No. 98-45, tit. II, 97 Stat. 219, 226 (1983).

100. McGarity, supra note 90, at 1535-1600.

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liberty that they effected.'' Moreover, individuals surveyed about thecar inspections indicated that they did not find the process undulytroublesome and that they tended to support I/M programsgenerally." Second, although public objection contributed to stateopposition to I/M programs, it was only one of a number of factorsinforming that opposition. States also chafed at the Act's cooperative-federalism arrangement;o took issue with the EPA's initial attemptsto force them to implement CAA programs;" disagreed with basicCAA goals;'" and quickly piggybacked on the concessions that otherstates had been able to win from the EPA regarding deadlines, I/Mrequirements, and other measures of compliance.' Finally, despite all

101. See id. at 1601-03 (noting complaints about wait times, dirtied seat covers, and the waysin which the test caused cars not to function properly); Bill Dawson, Waits Choke Some Driversas State's Smog-Checks Get in Gear, Hous. CHRON., Dec. 13, 1994, at A17 (reportingcomplaints about wait times and general annoyance with new I/M requirements in the earlydays of their implementation); Steve Strunsky, It Could Be Worse. It Could Be Texas., N.Y.TIMES, July 16, 2000, http://www.nytimes.com/2000/07/16/nyregion/driving-it-could-be-worse-it-could-be-texas.htm (reporting discontent with the wait times and inconvenience associated withNew Jersey's I/M program but also reporting overall support for emissions testing).

102. See McGarity, supra note 90, at 1604 (observing that comment cards submitted byindividuals in the early days of the Texas I/M program were generally positive); Strunsky, supranote 101 (reporting on a New Jersey poll finding that "8 in 10 respondents supported theenhanced inspection program" and that "[a]mong the 206 respondents who actually had theircars inspected under the new program, 52 percent said they were 'very satisfied' with theexperience"); see also Ostrov, supra note 93, at 142, 190 (observing that "[a]lthough somemotorists resent the perceived intrusion of the federal bureaucracy into their lives, onceimplemented, I/M need be no more intrusive or costly than the state safety inspections familiarto most," and summarizing polling data showing high public support for the continuation of I/Mprograms in states that had implemented them (footnote omitted)).

103. See McGarity, supra note 90, at 1622 ("State officials often express frustration with theintrusiveness of federal programs. They resent being treated like junior partners in therelationship, and they react negatively to the threat of federal sanctions, even when thosesanctions are merely refusals to provide federal dollars to fund state programs.").

104. See John Quarles, The Transportation Control Plans-Federal Regulation's Collisionwith Reality, 2 HARV. ENVTL. L. REV. 241, 252-53 (1977) (reviewing cases that constrainedEPA's authority to require specific regulatory actions by states under the CAA).

105. See McGarity, supra note 90, at 1621 (observing that some states doubt that the healththreats posed by air pollutants that I/M programs aim to reduce actually pose health threatsserious enough "to require members of the general public to go out of their way to clean uppollution").

106. Id. at 1623-24; see also Harris, supra note 96, at 1317 ("There are several underlyingreasons for the seemingly widespread aversion to the I/M program. They are: 1) an antipathy tofederal intrusion in matters considered to be of 'state or local' concern; 2) a concern about thecosts attending such programs; and 3) a belief in the existing technological effectiveness andefficiency of most American and foreign made automobiles."). A similar account helps toexplain the EPA's inability to impose transportation controls under the Clean Air Amendmentsof 1970, Pub. L. No. 91-604, 84 Stat. 1676 (codified as amended at 42 U.S.C. §§ 7401-7642(2006)). See Quarles, supra note 104, at 249-55. The EPA attempted, and failed, to require


of this troubled history, I/M programs have now been implemented inover thirty states, and their requirements are accepted as business asusual for millions of individuals.W In Professor Eric Biber's words,"[A]s drivers adapted to the existence of I/M programs, they becamemuch less controversial and much more popular."'o

2. Clean Water Act. The Clean Water Act (CWA), althoughinitially and primarily oriented toward larger point sources ofpollution,09 also directly regulates individual behaviors in a few ways.Most notably, individual property owners may be subject to controlson the use of their property that are designed to protect wetlands."o

transportation controls designed to reduce automobile use. Proposed measures includedprograms designed to disincentivize individuals from using their cars, including higher fees forparking, reduced parking availability, and gas rationing. Id. at 245-46. The transportation-control plans occasioned significant public outcry, which ultimately helped to defeat the plans,id. at 249-50, but a variety of other factors-including many of the federalism tensions thatplagued the implementation of I/M programs-also contributed to their failure, id. at 250-58.

107. For a description of current I/M programs, see U.S. ENVTL. PROT. AGENCY, MAJORELEMENTS OF OPERATING I/M PROGRAMS (2003), available at http://www.epa.gov/oms/epg/420b03012.pdf. See generally Benjamin Soskis, Lone Star Joining, NEW REPUBLIC, Sept. 18,2000, at 23, 26 (reporting on the results of polling showing that "[i]n 1999, 70 percent ofthose ... polled supported emissions testing for all vehicles in Houston, up from 38 percent justfour years earlier").

108. Eric Biber, Climate Change and Backlash, 17 N.Y.U. ENVTL. L.J. 1295, 1325 n.84(2009).

109. The core provisions of the CWA regulate the addition of pollutants to navigable watersfrom point sources. Point sources are defined in the Act as "any discernible, confined anddiscrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well,discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel orother floating craft, from which pollutants are or may be discharged." Clean Water Act (CWA)§ 502, 33 U.S.C. § 1362(14) (2006). Individuals have been deemed not to be point sources.United States v. Plaza Health Labs., Inc., 3 F.3d 643 (2d Cir. 1993).

110. Individual property owners may also be required to control runoff from their propertywhen a water body does not meet state water-quality standards and total maximum daily loadshave been developed. CWA § 303(d), 33 U.S.C. § 1313(d). Individual behaviors, such aswashing a car, may also be regulated under provisions of the Act governing stormwaterdischarges. See generally id. § 402, 33 U.S.C. § 1342 ("Permits for discharges from municipalstorm sewers . . . shall include a requirement to effectively prohibit non-stormwater dischargesinto the storm sewers .... ). Efforts to restrict non-storm-water discharges to storm sewersinclude restrictions on car washing and other individual activities. For example, the website ofthe City of South Portland, Maine, provides guidance about permissible types of outdoor carwashing. Outdoor Car Washing, CITY OF S. PORTLAND, http://www.southportland.org/index.asp?Type=B_BASIC&SEC=%7B845FE76B-380A-4630-97BC-F7F9D81A9040%7D&DE=%7BA673BO04-F980-4A83-80E5-616BE61D56E9%7D (last visited Feb. 14,2012) ("Regardless ofthe type of outside washing activity occurring, wash water is prohibited from directly enteringsurface waters (ponds, streams or wetlands), drainage ditches, storm drains or dry wells.. . . Theuse of acids, bases, metal brighteners, degreasing agents is prohibited for outside washingactivities that do not discharge to a [publicly owned treatment works].").

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Section 404 of the CWA prohibits the dredging or filling of wetlandsthat fall within the scope of the CWA's jurisdiction if a givenindividual lacks a permit."' Obtaining an individual section 404permit can be a lengthy, complex, costly, and uncertain process."Permits may not be available, for example, if there is a "practicablealternative" to the proposed discharge that would not have the sameadverse impact on wetlands"' or if issuing the permit would cause anyof a number of specified effects, including contributing to "significantdegradation of the waters of the United States."11 4 Thus, propertyowners who have long imagined building a swimming pool andgazebo in their backyard, or perhaps a cabin on the family's lakefrontproperty, may discover that doing so will require them to submit to apotentially complex federal permitting process,"' to alter their plansto minimize impacts on wetlands, or perhaps even to abandon theirplans altogether if a permit is not authorized. If they fail to recognizeor heed the statute's requirement and instead proceed without apermit, they may be subject to civil and criminal penalties.,

Section 404's potential and actual interference with propertyrights has occasioned vociferous opposition to the program."Property owners have challenged section 404 restrictions as

111. CWA § 404,33 U.S.C. § 1344(a).112. See Rapanos v. United States, 547 U.S. 715, 721 (2006) ("The average applicant for an

individual permit spends 788 days and $271,596 in completing the process, and the averageapplicant for a nationwide permit spends 313 days and $28,915-not counting costs of mitigationor design changes."). Notably, however, many common dredge and fill activities with minorimpacts-for example, projects that fill half an acre or less of nontidal wetlands-may beauthorized under nationwide general permits, which are much more readily obtained thanindividual permits. See ROBIN KUNDIS CRAIG, ENVIRONMENTAL LAW IN CONTEXT 834-35 (2ded. 2008). And some evidence suggests that the permit process is becoming more customerfriendly and easier to navigate. See Kim Diana Connolly, Survey Says: Army Corps No ScalianDespot, 37 ENVTL. L. REP. 10,317, 10,325-33 (2007) (reviewing customer-service surveyscompleted by section 404 applicants).

113. 40 C.F.R. § 230.10(a) (2011).114. See id. § 230.10(b)-(c) (specifying circumstances in which a permit will not be granted).

115. Although states can be delegated the authority to implement the section 404 permittingprogram, only two states have accepted this authority. THE CLEAN WATER ACT HANDBOOK 98(Mark A. Ryan ed., 2d ed. 2003). States have offered a variety of rationales for the decision notto accept permitting authority, including "the controversial nature of section 404 permitting."CRAIG, supra note 112, at 818.

116. CWA § 309,33 U.S.C. § 1319.117. See ROBERT MELTZ, CONG. RESEARCH SERv., RL30423, WETLANDS REGULATION

AND THE LAW OF PROPERTY RIGHTS "TAKINGS" (2000) ("Talk about wetlands preservationtoday and you may soon be talking about private property and takings. . . . Accounts of landowners aggrieved by wetlands regulation have been widely circulated by the property rightsmovement, and challenged by environmentalists.").

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unconstitutional takings-though usually unsuccessfully. 18 Since 1985,the Supreme Court has thrice heard challenges brought bylandowners contending that they should not be required to obtain asection 404 permit to develop their property, on the ground that theirproperty did not fall within the scope of the CWA's jurisdiction overnavigable waters."9 A variety of legislative proposals have beenoffered to limit the reach of the section 404 permitting program.1Policy and advocacy groups continue to object to the constraints thatthe section 404 permitting program places on landowners.'21 Andscholars lament the perverse incentives created by uncompensatedenvironmental-land-use regulations.122 Professor Jonathan Adlerobserves, for example, that "[f]ederal wetlands regulations undersection 404 of the CWA . . . likely discourage wetland conservationand restoration on private land, and may even encourage landmodifications that can destroy wetland characteristics."13

Nevertheless, the section 404 permitting program chugs along.The U.S. Army Corps of Engineers receives roughly 85,000 permitrequests annually,'24 and congressional proposals to limit the reach ofthe section 404 program compete with congressional proposals toexpand its jurisdiction.2

1 Moreover, corps customer-service surveysreveal little animosity or opposition from individuals who haveactually applied for a section 404 permit.126 Notably, opposition to the

118. Id. (reviewing wetlands takings cases).

119. Rapanos v. United States, 547 U.S. 715 (2006); Solid Waste Agency v. U.S. ArmyCorps of Eng'rs, 531 U.S. 159 (2001); United States v. Riverside Bayview Homes, 474 U.S. 121(1985).

120. MELTZ, supra note 117 ("In Congress, the 'property rights issue' has played out withparticular force in the area of wetlands regulation. Many property rights bills have targetedwetlands regulation.").

121. See, e.g., DANIEL R. SIMMONS & H. STERLING BURNETT, NAT'L CTR. FOR POLICYANALYSIS, POLICY REPORT NO. 291, PROTECTING PROPERTY RIGHTS, PRESERVINGFEDERALISM AND SAVING WETLANDS (2006) (critiquing the section 404 permit program, inlarge measure because of its interference with property rights, and detailing examples of abusiveapplication of the program to individual property owners).

122. Jonathan H. Adler, Money or Nothing: The Adverse Environmental Consequences ofUncompensated Land Use Controls, 49 B.C. L. REV. 301, 313-19 (2008).

123. Id. at 313-14.124. JEFFREY A. ZINN & CLAUDIA COPELAND, CONG. RESEARCH SERV., IB97014,

WETLANDS ISSUES 5 (2003).125. CLAUDIA COPELAND, CONG. RESEARCH SERV., R41594, WATER QUALITY ISSUES IN

THE 112TH CONGRESS: OVERSIGHT AND IMPLEMENTATION 12 (2011).126. See Connolly, supra note 112, at 10,325-33 (reviewing customer-service surveys

completed by section 404 applicants and finding that "[iun those districts that reported with astatistically significant number of surveys, more than half of respondents evaluating their overall

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section 404 program appears centered on the program'suncompensated and, in the eyes of some, unfair restrictions onproperty use. Under this account, the section 404 program is unfairbecause "[t]he benefits of wetlands preservation . . .- water filtration,wildlife habitat, protection against flooding and erosion-inure to thepublic. By contrast, the burdens of wetlands preservation, in terms ofdevelopment denied, fall on the wetland owner."'27 These property-rights objections, premised largely on questions of fairness, arise outof controls on uses of property, as opposed to direct controls onindividual behaviors. As such, they generate an objection distinctfrom the intrusion objection, which is frequently characterized asarising from a rejection of government invasion of privacy.28 Finally,at least some resistance to the section 404 program can likely beascribed to the fact that the program is frequently enforced by theU.S. Army Corps of Engineers-a federal agency regulating in anarea traditionally left to local governments.129

3. Endangered Species Act. A core protection of the EndangeredSpecies Act of 1973 (ESA)" is its prohibition on the "taking" oflisted endangered species.'3 ' The term "take" is defined by statute tomean "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, orcollect."132 The statutory term "harm" has been further defined byregulation to mean an act that actually kills or injures wildlife, adefinition that may "include significant habitat modification ordegradation where it actually kills or injures wildlife by significantlyimpairing essential behavioral patterns, including breeding, feeding or

experience with the Corps' Regulatory Program gave 'high satisfaction' ratings" (footnoteomitted)).

127. MELTZ, supra note 117.128. See Babcock, supra note 4, at 123 ("Efforts to detect and ultimately enforce against

individual activities that usually occur at home or in the immediately surrounding area wouldtrigger enormous political resistance, as they would be seen as an interference with individualliberty and an invasion of privacy.").

129. See generally Rapanos v. United States, 547 U.S. 715, 737-38 (2006) (discussing thestates' traditional authority over land-use decisions).

130. See Endangered Species Act (ESA) of 1973, 16 U.S.C. §§ 1531-1544 (2006 & Supp. IV2010).

131. Id. § 9(a)(1)(B), 16 U.S.C. § 1538(a)(1)(B). The Act also prohibits the removal ordamage of endangered plants in known violation of state law, id. § 9(a)(2)(B), 16 U.S.C.§ 1538(a)(2)(B), and the take prohibition sometimes extends to threatened species as well, 50C.F.R. § 17.31(a) (2010).

132. ESA § 3(19), 16 U.S.C. § 1532(19).

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sheltering."133 The ESA also prohibits the sale, import, export, ortransport of listed endangered species." Violation of these provisionsmay lead to civil and criminal penalties, and the ESA provides amechanism for prospectively enjoining activities that might havethese forbidden effects.

The ESA thus regulates individuals in two related but distinctways. First, it prohibits individuals from directly killing, injuring, etcetera-or selling, transporting, et cetera-listed endangered species.Second, because significant habitat modification can also constitute a"take,"136 the ESA regulates individuals as property owners,effectively restricting their use of their property. Even when alandowner does not know whether modifying the habitat on hisproperty will harm a protected species, he nonetheless faces apotentially difficult decision, as explained by Steven Quarles andThomas Lundquist:

[W]here there is . . . a risk of future take, it appears that thelandowner is free to make a difficult choice among the options of:(1) not conducting the land use activity and bearing the economicconsequences; (2) applying for an incidental take permit and bearingthe economic, delay, and permit uncertainty consequences; or(3) conducting the land use activity and bearing the consequences ofpotential civil and criminal liability if a take does occur.137

The first set of restrictions-on an individual's freedom todirectly kill or injure; or to sell, import, export, or transportendangered species-has not engendered widespread or sustainedpublic objection and appears to be relatively well accepted. 38 The

133. 50 C.F.R. § 17.3. Of note, however, the showing required to establish a take remainsunclear and differs among jurisdictions. Steven P. Quarles & Thomas R. Lundquist, When DoLand Use Activities "Take" Listed Wildlife Under ESA Section 9 and the "Harm" Regulation?, inENDANGERED SPECIES Acr: LAW, POLICY, AND PERSPECrIVES 207, 207-09 (Donald C. Baur& Wm. Robert Irvin eds., 2002).

134. ESA § 9(a)(1)(A), (E)-(F), 16 U.S.C. § 1538(a)(1)(A), (E)-(F).135. Id. § 11(a)-(b), (e)(6), 16 U.S.C. § 1540(a)-(b), (e)(6).136. See Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 708 (1995)

(holding that habitat modification can constitute an illegal "take" of a species).137. Quarles & Lundquist, supra note 133, at 233-34; see also id at 242-43 ("[Llandowners

in areas inhabited by listed wildlife species face uncertainty as to whether their land use actionswill be viewed as take. This springs from both factual uncertainty about whether the land useactivity will actually injure a member of a listed wildlife species and legal uncertainty over theapplicable tests for harm and harass.").

138. This statement should not be taken to suggest that no opposition to these ESArestrictions exists. Landowners, for example, have protested that the Act's take prohibition

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second set of restrictions-on land use-however, has inspiredstrident and sustained public objections.3 9 These restrictions arecriticized as unfairly imposing the costs of species protection on asubset of individual landowners;'" subjecting individuals to aconfusing array of regulatory requirements and red tape; usurpinglocal land-use authority; creating perverse incentives that causelandowners to harm species and destroy habitats to avoidregulation;'4 1 and, most importantly, interfering with landowners'property rights.'42 Thus, as with the section 404 program, opposition tothe ESA's land-use restrictions centers on their interference withproperty rights.143 The regulatory interpretation of the term "take" to

unfairly prevents them from protecting their property, including livestock, from nuisance

predator species, such as grizzly bears and wolves. See Robert Meltz, Where the Wild Things

Are: The Endangered Species Act and Private Property, 24 ENVTL. L. 369, 391-98 (1994)

(describing property claims that arise from "instances when a person is barred from using

certain measures to protect his property from the depredations of protected wild animals"). This

source of opposition is, however, more akin to objections grounded in concerns over property

rights.139. See, e.g., Erin Morrow, The Environmental Front: Cultural Warfare in the West, 25 J.

LAND RESOURCES & ENVTL. L. 183, 184 (2005) (commenting that "[tihe broad regulatory

powers and land use restrictions wielded by federal agents under the Endangered Species

Act .. . have collided with western perceptions of private property and distrust of regulation,"

and describing the "legal and cultural battles" that were occasioned by implementation of the

ESA in the American West).

140. Id. at 188 ("The ESA has been criticized by landowners, environmentalists, and

economists alike because it unfairly allocates costs and creates perverse incentives. The ESA is

justified because it provides collective benefits like potential medical discoveries, aesthetic

pleasure, and ecosystem functions. The cost of species protection, however, falls on a much

narrower subgroup."); see also Sweet Home, 515 U.S. at 714 (Scalia, J., dissenting) (decrying the

majority's opinion as "impos[ing] unfairness to the point of financial ruin-not just upon the

rich, but upon the simplest farmer who finds his land conscripted to national zoological use").

141. Mark Sagoff, Muddle or Muddle Through? Takings Jurisprudence Meets the

Endangered Species Act, 38 WM. & MARY L. REv. 825, 826-28 (1997) (describing the public

reaction to the Supreme Court's decision that significant habitat modification can constitute a

prohibited take of a species, including the recommendation of the executive director of the

American Lands Rights Association that property owners should shoot and bury endangered

species spotted on their land to avoid the Act's strictures).

142. See id. at 831-51 (describing property-rights objections to the ESA); Barton H.

Thompson, Jr., The Endangered Species Act: A Case Study in Takings and Incentives, 49 STAN.L. REv. 305, 324-335 (1997) (explaining the property-rights movement's objections to, and focus

on, the ESA).143. Doremus, supra note 29, at 346 ("Despite an under-appreciated history of substantial

regulation, real property has somehow become an iconic symbol of individual liberty in

America. Landowners assume that they are or should be free to use their land in virtually any

way they please, so long as other people are not directly injured by that use. Because that

assumption is widespread and politically powerful, the effort to impose the kinds of regulatorycontrols on land use that are essential to biodiversity protection faces particularly formidableinstitutional barriers." (footnote omitted)).


include significant habitat modification has been legally challenged,although ultimately upheld by the Supreme Court.1 " Opponents ofthe ESA have also brought suit alleging that the statute isunconstitutional, most notably arguing that application of the ESA tointrastate species and property exceeds Congress's authority underthe Commerce Clause.'45 Aggrieved property owners have continuedto argue-overwhelmingly unsuccessfully-that ESA-imposedrestrictions on land use constitute a compensable taking.'" Scholarshave critiqued the perverse incentives that the ESA creates forlandowners to kill endangered species, remove evidence of theanimals' presence, and destroy potential habitats; stories of this kindof landowner behavior, colloquially termed "shoot, shovel and shutup," abound.147 In response to this widespread derision, Congressamended the ESA to allow individuals to apply for permits to "take"species in certain circumstances, thereby blunting the statute'srestrictions on property use. 48 Congress has also entertained manyproposals aimed at amending the ESA to limit or remove restrictionson private landowners or to provide them with compensation.149

For present purposes, what is perhaps most notable about theseESA controversies is that they are not grounded in the narrower,privacy-based intrusion objection. And even if the public opposition

144. Sweet Home, 515 U.S. at 708.145. See, e.g., GDF Realty Invs., Ltd. v. Norton, 326 F.3d 622, 640-41 (5th Cir. 2003)

(upholding the take prohibition as applied to intrastate species on intrastate property in Texas);Gibbs v. Babbitt, 214 F.3d 483, 486-87 (4th Cir. 2000) (upholding application of the section 9take prohibition to an experimental population of red wolves in North Carolina and Tennessee);Nat'l Ass'n of Homebuilders v. Babbitt, 130 F.3d 1041, 1059-60 (D.C. Cir. 1997) (upholdingapplication of section 9 of the ESA to a wholly intrastate species on a wholly intrastateproperty).

146. Glenn P. Sugameli, The ESA and Takings of Private Property, in ENDANGEREDSPECIES ACr, supra note 133, at 441, 441-58.

147. See Adler, supra note 122, at 319-32 (advocating the compensation of landowners, inpart because it would remove harmful perverse incentives and thus would benefit species, anddetailing how the ESA causes landowners to undermine species-preservation efforts); see alsoRobert A. Hillman, The Rhetoric of Legal Backfire, 43 B.C. L. REV. 819, 824-28 (2002)(documenting the ubiquity of claims that landowners destroy habitats to avoid the ESA'sstrictures but finding no empirical evidence to support the view that the attitudes motivatingsuch behavior actually render the Act ineffective).

148. Endangered Species Act (ESA) of 1973 § 10(a), 16 U.S.C. § 1539(a) (2006); see alsoQuarles & Lundquist, supra note 133, at 243-44 (describing efforts to provide landowners withgreater certainty regarding compliance with the ESA).

149. E.g., Threatened and Endangered Species Recovery Act of 2005, H.R. 3824, 109thCong. (2005) (creating a system of grants for private landowners who protect endangeredspecies and authorizing reimbursements for private livestock killed by endangered predatoryspecies).

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to the ESA could be understood to fall within the very broadconception of the intrusion objection as political resistance togovernment overreaching, the very specific context for thatopposition, as with opposition to the section 404 program, would bethe somewhat unique setting of property rights.5 o

C. Lessons from Regulation of Environmentally SignificantIndividual Behaviors

The difficulties encountered in applying federal environmentalstatutes directly to individuals are often cited-even by this author-as evidence of the perils of using mandates to control environmentallysignificant individual behaviors and, thus, of the limited utility ofthose mandates."' To some extent, the examples in the previousSections map onto the standard critique of individual mandates,which focuses on cost and administrative constraints, as well as publicopposition to "intrusive" enforcement.'52 Implementation burdens-the cost and administrative burden of testing emissions fromhundreds of thousands of vehicles"'-appear to explain, at least inpart, the difficulties encountered with respect to the CAA I/Mprograms, specifically, states' resistance to implementing thoseprograms." It is also clear, however, that other factors, beyondimplementation challenges and public opposition, have contributed tothe difficulties encountered in implementing the regulatory measures.Federalism friction, in terms of states' willingness to implementfederal statutes through cooperative-federalism arrangements, has

150. Perceptions of interference with property rights may present special considerations. Seegenerally Jonathan Remy Nash & Stephanie M. Stem, Property Frames, 87 WASH. U. L. REV.449, 451-52 (2010) (using the ESA as an example of a circumstance in which property owners'mistaken perceptions of strong or unfettered private property rights can frustrate regulation andproposing new methods for framing property rights to avoid this problem).

151 See Katrina Fischer Kuh, Using Local Knowledge To Shrink the Individual CarbonFootprint, 37 HOFSTRA L. REV. 923, 936 (2009) ("[Mlandates and their enforcement-even iffeasible-may founder on objections that they are uncomfortably intrusive. . . . And mandateson individual action that raise such objections create the risk of giving rise to perverseresponses."); Vandenbergh, supra note 7, at 554-56 ("Efforts to control individual behavior [forenvironmental reasons] through command and control regulation have been far more limitedand far less successful.").

152. Vandenbergh, supra note 7, at 597-600 (describing the difficulties of applying mandatesto individual behaviors, including the cost and intrusiveness of enforcement).

153. McGarity, supra note 90, at 1571 (referencing an EPA estimate that the cost of testingto implement one proposed I/M rule would have been approximately $451 million).

154. Reitze & Needleman, supra note 93, at 416 (explaining that the I/M program was"unpopular in many states" partly because it "drained scarce state financial resources").

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bedeviled the CAA's vehicle I/M program."' And, as discussed inPart I.B.1, the public has opposed these measures for a variety ofreasons separate from any objections to the intrusiveness ofgovernment enforcement.

Perhaps most interesting are the ways in which prior experienceregulating environmentally significant individual behaviors departsfrom, or at least complicates, the intrusion objection. Althoughnowhere fully developed or explained, the intrusion objection isfrequently articulated as the idea that direct regulation ofenvironmentally significant individual behaviors would requireunacceptably intrusive enforcement-measures that would be tooinvasive of privacy and civil liberties"' or, as the intrusion objection isoccasionally characterized, that would constitute governmentoverreaching."' This objection suggests that a government "no fly"zone exists, in which regulation of individuals is per se unacceptable.It also suggests that direct regulation of environmentally significantindividual behaviors would be of limited utility because it would sofrequently transgress that no-fly zone. The American experience withdirect regulation of environmentally significant individual behaviorscomplicates this view.

First, direct regulation of at least some environmentallysignificant individual behaviors is relatively common and is generallyaccepted, primarily at the local level. This acceptance is present evenwhen enforcement, or at least the threat of enforcement, is arguablyquite intrusive-for example, when recycling ordinances permitsearches of individuals' trash."' Notably, the restrictions on the exportor sale of endangered species have similarly not occasionedsignificant backlash.

Second, public opposition to measures that directly regulateenvironmentally significant individual behaviors does not appear tohave been monolithic over time in terms of content, breadth, or evenstrength, nor does it appear to have been expressed exclusively oreven primarily through concerns about government invasion ofprivacy or overreaching. Public opposition has proved to be dynamic

155. McGarity, supra note 90, at 1622-24 (describing state-federal disputes over theimplementation of I/M requirements and further observing that politicians have frequently usedthe I/M program to make appeals to the public that "attack[ed] the federal government").

156. See supra note 30.157. See supra note 31.158. See supra notes 70-73 and accompanying text.

[Vol. 61:11111148


over time or geography, a fact that is illustrated by the reality thatvehicle I/M programs are now commonplace in many parts of thecountry. This example suggests the possibility that even strident initialopposition to a measure might reflect a mere bias for the status quo,but one that can ultimately be overcome.15 9 Public oppositionsometimes appears to have arisen from the straightforward rejectionof a measure on typical balancing grounds-that is, based on thecontention that the benefits of the measure are not worth the cost orinconvenience.'6o And opposition has frequently been grounded inproperty-rights objections that are distinct from theenforcement/privacy concerns that are most commonly understood toanimate the intrusion objection. Property-rights objections arefrequently rooted in claims about fairness or the undue burdenimposed on a select number of unlucky landowners, and theyarguably present a type of objection to regulation that is distinct fromeven the broadest conception of the intrusion objection as beingpremised on public opposition to government overreach."' Indeed,

159. See generally Biber, supra note 108, at 1317-28 (noting and offering explanations forthe "resistance to the regulation of long-standing activities," including the status quo bias, andobserving that this resistance may be particularly pronounced when regulation seeks to preventlong-term environmental harms); Doremus, supra note 29, at 346 ("The law's resistance tochange is even more pronounced when regulation is sought in an area where unrestrictedindividual choice has been (or is perceived to have been) the norm."); Lisa Heinzerling,Environmental Law and the Present Future, 87 GEO. L.J. 2025, 2068 (1999) (discussing the statusquo bias and how habits and their development can dictate the environmental harms occasionedby individual behaviors); Serkin, supra note 46 (exploring and critiquing property law's robustprotections for existing uses).

160. Consider, for example, public complaints about vehicle I/M programs. See supra notes91-93 and accompanying text.

161. For a discussion of why and how property-rights objections may present a special case,see Doremus, supra note 29, at 346; and Nash & Stern, supra note 150, at 449. In addition to thefairness objections noted with respect to land-use restrictions imposed under the section 404program and section 9 of the ESA, similar fairness objections sometimes arise in the context ofobjections to water-use restrictions. Although common and generally accepted in manycommunities, water-conservation ordinances often raise fairness issues. Residents of NassauCounty objected to their ordinance because they believed that restrictions were being institutedto allow for overdevelopment and that wealthier neighborhoods were being permitted to usemore water. Schmitt, supra note 73. In the Tampa Bay area, the South Florida WaterManagement District found in a public-opinion survey that public opposition only seems tocome into play when residents do not feel that others are doing their part, particularly when theagricultural industry does not seem to be helping with conservation. David K. Rogers, 'Do YourPart' To Save Water, ST. PETERSBURG TIMES, Jan. 25, 1994, at 1B; see also Shirley David,Letter to the Editor, Strawberry Growers, ST. PETERSBURG TIMES, Dec. 22, 2010, at 10A(blaming agricultural water use for damage to private homes); D.W. Deck, Letter to the Editor,Real Cause of Sinkholes Ignored, ST. PETERSBURG TIMES, Jan. 19, 2011, at 2 (arguing thatoveruse of water in other counties was having detrimental effects on homeowners who were

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with the possible exception of commentary suggesting that the use ofRFID chips to enforce recycling ordinances constitutes governmentspying, not one of the examples in this Part seems to provide a clearexample of the privacy-based intrusion objection in action. But fatalpublic opposition-for example, to environmental taxes or to theinstallation of smart meters-has arisen with respect to the indirectregulation of environmentally significant individual behaviors as well.

A review of the regulation of environmentally significantindividual behaviors suggests that, broadly speaking, indirectregulation of environmentally significant individual behaviors is thepredominant method. Additionally, although intrusion objections andpublic resistance frustrate some efforts at indirect regulation, theintrusion objection has not been held up as a significant impedimentto the use of indirect regulation generally, as it has been with respectto direct regulation.1 62 Public, political resistance is frequentlyidentified as a significant impediment to environmental taxes aimedat individuals; notably, however, the origin of that resistance is notcharacterized as a rejection of intrusive government action, nor is thepolitical infeasibility of such taxes taken as a wholesale rejection ofother indirect market measures to influence environmentallysignificant individual behaviors.

This heavy reliance on the indirect regulation of individualssuggests an interesting observation with respect to the intrusionobjection. Although the intrusion objection posits that directregulation of individuals poses particular concerns regarding theinfringement of civil liberties, in some ways, indirect regulation isarguably more intrusive, or at least more troubling, from the

conserving). In Rio Rancho, New Mexico, residents expressed concern about the waterdemands of new development and industry's high use of water, particularly the failure ofindustry to do its part to conserve. See Jon Fleischer, Letter to the Editor, Building Isn't DryingUp, ALBUQUERQUE J., May 9, 2006, at A6 (describing the water plan as beneficial only fordevelopers); Gary W. Priester, Letter to the Editor, Drought Does Not Compute,ALBUQUERQUE J., May 9, 2006, at A6 (objecting specifically to Intel's water usage).

162. This observation should not be read to imply that environmental laws that indirectlyregulate individuals occasion no public opposition. To the contrary, indirect regulation can anddoes inspire negative public responses, particularly when the indirect regulation is recognizedas-or simply viewed as-imposing higher costs on individuals. See Anderson, supra note 53, at367 n.242 (citing, as an example of public backlash against indirect regulation, water customers'burning their water bills to protest higher costs attributable to the cleanup of Boston Harbor);Vandenbergh et al., supra note 13, at 739-40 (describing the defeat of a Maryland proposal toinstall residential smart meters with peak-demand pricing capabilities and explaining how"[p]olicies that link new technology uptake to price signals in some cases can generateopposition to both").

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perspective of protecting civil liberties, than direct regulation.'63 Thishypothesis may hold true for two reasons. First, in some of its mostcommon iterations, such as product mandates, indirect regulationextinguishes individual choice: the individual does not have theoption of choosing not to comply." Second, because indirectregulations are enforced against other entities, such as productmanufacturers, those regulations are less visible to the ultimatelyregulated individual and, hence, are less subject to democraticcontrols.6

1 In short, in some circumstances, indirect regulation mayattract less public opposition in part because it obscures the controlsit places on individuals.

Ultimately, however, information gleaned from a review of priorand existing direct regulation of environmentally significantindividual behaviors does not provide a satisfying basis for drawinggeneral conclusions about the potential for applying mandates tothose behaviors, nor does the information enable an estimation of thespecific obstacles that the intrusion objection may pose to any givenproject. The characterizations of public opposition that I have offeredwere gleaned from a review of newspaper articles, ad hoc surveys,and other similar sources, as opposed to contemporary and reliablesocial-science data. Thus, my characterizations are supported by some

163. Of course, direct regulation through mandates also constrains liberty. See THALER &SUNSTEIN, supra note 22, at 186 ("Especially when compared with command-and-controlsystems, economic incentives have a strong libertarian element. Liberty is much greater whenpeople are told, 'You can continue your behavior, so long as you pay for the social harm that itdoes' than when they are told, 'You must act exactly as the government says.').

164. See Cheng, supra note 22, at 669 ("Fiat makes compliance a choice, whereas structuremakes compliance largely automatic. The involuntary nature of structural regulation raisesobjections of excessive government control, reduced liberty, and invasions of privacy."(footnote omitted)); Richard A. Posner, Social Norms and the Law: An Economic Approach, 87AM. ECON. REv. 365, 367 (1997) (arguing that internalized norms, unlike external laws, depriveindividuals of the opportunity to weigh obedience to the law and thereby limit freedom).

165. See THALER & SUNSTEIN, supra note 22, at 243-46 (describing a "publicity principle[that] bans government from selecting a policy that it would not be able or willing to defendpublicly to its own citizens" to mitigate this potential concern); Lessig, supra note 10, at 690(observing that "indirect modes of regulation" face a "problem of regulatory indirection"because they "may allow the government to achieve a regulatory end without suffering politicalcost"). Of course, some indirect regulation-regulation of the market through taxes onconsumer goods, for example-is highly visible. This visibility means that such measures areoften rejected by the public, occasioning recourse to less visible means of indirect regulation orother regulatory strategies. See THALER & SUNSTEIN, supra note 22, at 187 ("[I]ncentive-basedsystems [such as GHG taxes] have not always gained political traction-in part, we think,because they make the costs of cleaning up the environment transparent. Announcing a newfuel efficiency standard sounds misleadingly 'free,' whereas imposing a carbon tax soundsexpensive, even if it is actually a cheaper way of achieving the same goal.").

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data, but they are not definitive or empirically defensible. Moreover,the dataset is necessarily incomplete. Missing are a potentially greatnumber of measures that-perhaps because they were too intrusive-never crossed the lips of policymakers or flickered out so quickly thatthey left little record. And my examples are hardly exhaustive. Myanalysis focuses primarily on the usual suspects-those instances ofdirect regulation most often cited as evidence that cuts against thefeasibility of mandates on individuals-and almost certainly missesexamples of other types of direct regulation, particularly at the locallevel. Recognizing the limited utility of these factual examples foranalyzing the intrusion objection, Part II seeks to gain insight from amore theoretical perspective, stepping outside of the context ofenvironmentally significant individual behaviors and employingsubstantive due process doctrine to think more broadly about whatmight render government regulation of individuals unacceptablyintrusive.

II. RECOGNIZING INTRUSION: LESSONS FROM

SUBSTANTIVE DUE PROCESS

Governments regularly adopt and enforce laws that directly andindirectly restrict individual liberty" without encounteringinsurmountable public opposition, whether as a result of perceivedintrusion or otherwise. Speed limits, noise ordinances, compulsoryeducation, building codes, product mandates, and criminal codes alllimit individual freedom. Thus, when the literature raises intrusionconcerns as a particular impediment to mandates addressed toregulating environmentally significant individual behaviors,"' it byextension suggests that mandates aimed at these behaviors restrictindividual freedom in a manner that is more likely to be deemedunacceptably intrusive. To better understand what renders suchmandates particularly offensive-or to better evaluate the claim thatthey are particularly offensive-it is useful to consider a question thatis both more general and more limited. Namely, when and why are

166. Or, if one prefers to avoid constitutional connotations, the term "freedom" might bepreferable. For an interesting dispute over the terminology of liberty versus that of freedom,compare City of Chicago v. Morales, 527 U.S. 41, 53 n.19 (1999), with id. at 73, 84 (Scalia, J.,dissenting). I generally use the term "liberty" in its broad sense to refer to the "ability ofindividuals to engage in freedom of action within society and free choice regarding most aspectsof . . . private life." JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW§ 13.4(d)(vii), at 669 (8th ed. 2010).

167. E.g., Babcock, Global Climate Change, supra note 12, at 5-6.

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government restrictions on individual freedom deemedunconstitutional because they are unacceptably intrusive?

This Part begins by explaining why substantive due processdoctrine and, in particular, some early privacy cases provide usefulguidance about when laws are likely to trigger intrusion objections.It then describes how and why those cases distinguish direct andindirect regulation and afford special solicitude to conduct occurringwithin the home. This Part further explains why the direct-indirectdistinction and the special status of the home may offer some insightsinto the intrusion objection.

A. The Relevance of Substantive Due Process and the Early PrivacyCases

The Fifth and Fourteenth Amendments prohibit the governmentfrom depriving persons "of life, liberty, or property, without dueprocess of law."'69 Under the theory of substantive due process, a lawcontravenes this constitutional guarantee if it does not bear a rationalrelationship to a legitimate interest of government"o-in other words,if it effects a "totally arbitrary deprivation of liberty""'-or if itinfringes a fundamental right and is not narrowly tailored to promotea compelling government interest."2 The judiciary retains a limitedpower to strike down laws that survive the political process, and thatdo not contravene a right specifically protected in the Bill of Rights,but that nonetheless are wholly arbitrary or infringe "fundamental

168. That this analysis looks to substantive due process review for insight into the intrusionobjection should not be taken to suggest that that branch of the Supreme Court's jurisprudenceis the only-or even the best-source of such insight. Other fields, such as psychology,sociology, or political theory; methods, such as polling; or even strands of legal doctrine, such asthe Fourth or Fifth Amendment, might well provide additional insight. The claim offered here isthat substantive due process review is one noteworthy source of insight into the intrusionobjection because the inquiry conducted by judges engaged in this kind of review mirrors thecore sentiment underlying the intrusion objection: Looking to tradition, history, and gestaltnotions of freedom and autonomy, has the government overstepped its bounds? Substantivedue process review may even offer some advantages to, for example, polling because judges(unlike polled subjects) are required to explain their decisions. And although substantive dueprocess review pulls from both Fourth and Fifth Amendment concepts, it is not tied to theinterpretation of specific constitutional text.

169. U.S. CONST. amend. V; id. amend. XIV, § 1.170. Washington v. Glucksberg, 521 U.S. 702, 728 (1997); Amunrud v. Bd. of Appeals, 143

P.3d 571, 576-78 (Wash. 2006) (en banc) (explaining when substantive due process claims areafforded rational basis review, as opposed to strict scrutiny review).

171. NOWAK & ROTUNDA, supra note 166, § 11.4(e), at 486.172. Glucksberg, 521 U.S. at 721.

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rights and liberty interests.""' Political-process checks and judicialreview under specific provisions of the Constitution are otherwisedeemed sufficient to weed out legislation that inflicts unacceptabledeprivations of liberty.

This judicial role is both disputed'74 and narrowly defined,particularly with respect to the application of heightened scrutiny.Limitations on the judicial role arise out of the concern that thejudiciary either lacks institutional competence or acts at the boundsof-or even beyond-its constitutional authority when it undertakesthe necessarily subjective"' task of identifying fundamental rights. Asthe Court itself has explained,

[W]e "ha[ve] always been reluctant to expand the concept ofsubstantive due process because guideposts for responsibledecisionmaking in this unchartered area are scarce and open-ended." By extending constitutional protection to an asserted rightor liberty interest, we, to a great extent, place the matter outside thearena of public debate and legislative action. We must therefore"exercise the utmost care whenever we are asked to break newground in this field," lest the liberty protected by the Due ProcessClause be subtly transformed into the policy preferences of theMembers of this Court.'76

A chief doctrinal constraint on substantive due process review is thatheightened scrutiny is meant to be reserved for the most importantand historically demonstrable"'7 rights and liberties-those that are

173. Id. at 720. At best, substantive due process review provides a judicial backstop to

prevent liberty deprivations that are out of step with the shared American understanding of the

appropriate role of government but that have slipped through the political process; at worst, in

the name of erecting such a backstop, courts impose artificial and unnecessary constraints on

government power that are out of sync with public and constitutional values.

174. For a recent demonstration of disagreements over the meaning and scope of the Due

Process Clause, compare the concurrence of Justice Scalia in McDonald v. City of Chicago, 130S. Ct. 3020, 3050-58 (2010), with the dissent of Justice Stevens, id. at 3088-3120 (Stevens, J.dissenting). See also ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL

SEDUCTION OF THE LAW (1990) (examining theories about the proper judicial role); JOHNHART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 18 (1980)(referring to substantive due process as a "contradiction in terms-sort of like 'green pastelredness"').

175. Glucksberg, 521 U.S. at 722 (referring to the "subjective elements that are necessarilypresent in due process judicial review").

176. Id. at 720 (quoting Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992)).

177. Id. at 721.

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"rooted in the . . . conscience of our people""' and that constitute"vital principles in our free Republican governments" that"determine the nature and terms of the social compact."17

The narrow role reserved to the judiciary in substantive dueprocess review reflects in part the belief that judicial intervention isoften unnecessary, as the political process will frequently defeatoffensive measures; the intrusion objection can be understood tofunction as part of that political-process check: laws restrictingenvironmentally significant individual behaviors that trigger intrusionobjections will not be enacted, will be repealed, or will be willfullydisregarded and unenforced. Of course, the public may rejectperfectly constitutional restrictions for a variety of reasons unrelatedto concerns about intrusion. For instance, the public might not acceptthat the environmental problem is real or important, or at least notimportant enough to warrant a particular government action, orindividuals might not wish to be personally subject to the restriction."'Thus, public and political tolerance of liberty deprivations to protectthe environment does not necessarily have a constitutional dimensionand may, in many cases, be indexed to considerations unrelated tointrusion objections.' Moreover, although one can imagine, say, a

178. Griswold v. Connecticut, 381 U.S. 479, 487 (1965) (quoting Snyder v. Massachusetts,291 U.S. 97, 105 (1934)).

179. Calder v. Bull, 3 U.S. (Dali.) 386, 388 (1798) (emphasis omitted).

180. As I have explained, the intrusion objection is nowhere precisely defined. It is most

commonly described as an objection grounded in concerns about how government enforcement

might infringe civil liberties, most notably privacy. Substantive due process review may be most

relevant in terms of illuminating this narrower, privacy-based type of intrusion objection. At

times, the intrusion objection is described more broadly as public-or political-resistance to

measures designed to restrict environmentally significant individual behaviors. To the extent

that this resistance resides in straightforward balancing (in other words, a measure generates

opposition because the public is not convinced that its purpose or effect warrants its costs, or

simply because members of the public-recognizing the government has the authority to impose

the proposed constraints-nonetheless do not wish to be subject to those constraints),substantive due process review will shed little light. To the extent, however, that this resistance

is grounded in a sense that government has overreached-exceeded its appropriate bounds with

respect to its dictate of individual decisions-or that the perceived intrusiveness of a measure is

one of the costs weighed by the public in deciding whether to support that measure, substantivedue process review may well provide some insight.

181. It is unclear whether the intrusion objection anticipates that most mandates governing

environmentally significant individual behaviors will be rejected on intrusiveness grounds

regardless of the value placed on the environmental benefit sought to be achieved, or whether

the intrusion objection functions simply to outweigh environmental benefits, as when individuals

conclude that the environmental benefits of a measure do not justify the discomfort of the

intrusion required to achieve its benefits. This latter analysis is akin to the balancing undertaken

by the Court during the Lochner era, which has since been disavowed, whereby the Justices


population-control measure that might offend fundamental rights, 82

the vast majority of measures that might be contemplated as a meansof altering environmentally significant behaviors-requiringindividuals to reduce the settings of their water heaters or keep theirtires properly inflated' 83-do not implicate fundamental rights subjectto heightened due process review."

Substantive due process review does, however, perform the samebasic function as the intrusion objection: it imposes boundaries ongovernment restrictions of individual liberty. 5 Importantly, bothsubstantive due process review'" and public or political rejection of ameasure on intrusion grounds can forestall government action, evenwhen the action has a legitimate, rational purpose, if the action isdeemed to intrude too greatly on individual liberty. Both processesdemarcate the proper relationship between government and theindividual-in effect, what the government either cannot do or should

would "only approve laws where they believe[d] that the end of the law, based on their personalvalues, justifie[d] an intrusion on individual liberty." NOWAK & ROTUNDA, supra note 166,§ 11.4(e), at 489. In either case, the obstacle that the intrusion objection poses to the use ofmandates on environmentally significant individual behaviors depends on when, how, and towhat extent mandates trigger the intrusion objection.

182. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 915 n.3 (1992) (Stevens, J.,concurring in part and dissenting in part) ("[A] state interest in population control could notjustify a state-imposed limit on family size or, for that matter, state-mandated abortions.").

183. By one estimate, a "one-third increase in proper tire inflation would translate into CO,savings of 12 million tons," and a reduction in the temperature of a water heater from 140 or 150degrees Fahrenheit to 120 degrees Fahrenheit "could produce as much as 1,466 pounds of CO,emissions reductions per year." Vandenbergh et al., Individual Carbon Emissions, supra note12, at 1746, 1748.

184. Recognized fundamental rights include "the specific freedoms protected by the Bill ofRights" as well as "the rights to marry; to have children; to direct the education and upbringingof one's children; to marital privacy; to use contraception; to bodily integrity; and to abortion."Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (citations omitted).

185. Notably, substantive due process review also employs the terminology of intrusion tocharacterize government action that oversteps. See Lawrence v. Texas, 539 U.S. 558, 578 (2003)(holding that a state statute prohibiting same-sex sodomy violated the Due Process Clause ofthe Fourteenth Amendment because it "further[ed] no legitimate state interest which c[ould]justify its intrusion into the personal and private life of the individual"); Eisenstadt v. Baird, 405U.S. 438, 453 (1972) ("If the right of privacy means anything, it is the right of the individual,married or single, to be free from unwarranted governmental intrusion into matters sofundamentally affecting a person as the decision whether to bear or beget a child." (emphasisomitted)).

186. Strict scrutiny is applied to government actions that infringe on fundamental rights. SeeReno v. Flores, 507 U.S. 292, 302 (1993) (observing that substantive due process "forbids thegovernment to infringe certain 'fundamental' liberty interests at all, no matter what process isprovided, unless the infringement is narrowly tailored to serve a compelling state interest"(emphasis omitted)).

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not do based on the "nature and terms of the social compact."'"8 Andin imposing boundaries on government action, both processes locatethe boundaries-self-consciously, in the case of substantive dueprocess review; intuitively, in the case of the intrusion objection-inaccordance with gestalt notions of "the [appropriate] balance[between the] . . . liberty of the individual . . . and the demands oforganized society."'" So, under substantive due process review,boundaries on government action are adduced by looking to "ourNation's history, legal traditions, and practices"18 for "enduringthemes of our philosophical, legal, and cultural heritages."" In thecontext of the intrusion objection, boundaries are imposed when anenvironmental mandate gives rise to what the public-whoseattitudes are presumably shaped by this same history and tradition-views as "an interference with individual liberty and an invasion ofprivacy"' 91 that is unacceptably intrusive.

Substantive due process analysis is, then, self-consciouslygrounded in values and tradition, both of which arise from and reflectingrained societal understandings about when the government hasoverstepped its bounds.'" Justice Black's dissent in Griswold v.Connecticut'3 went so far as to suggest that polling the public would

187. Calder v. Bull, 3 U.S. (Dall.) 386, 388 (1798) (emphasis omitted).

188. Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting).

189. Glucksberg, 521 U.S. at 710.190. Id. at 711.191. Babcock, supra note 4, at 123.192. This statement is not to suggest that judicial and lay understandings of when

government has overstepped are, in fact or in theory, precisely the same. That judicial review isneeded at all indicates that the political process will not always weed out unconstitutionaldeprivations of liberty. But such deprivations might occur even when judicial and layunderstandings of government intrusion concur. Liberty-depriving laws may be enacted becauseof flaws in the political process-such that the political process fails to reflect public libertyvalues-or may be recognized as liberty-depriving but aimed at minority groups. Indeed, theserationales are frequently referenced to justify judicial review. See United States v. CaroleneProds. Co., 304 U.S. 144, 152 n.4 (1938) (recognizing that judicial review has been used tocorrect flawed political processes). For example, one explanation offered of the privacy cases isthat the Court was concerned with desuetude and that the privacy cases signify "a judicialinsistence that, if laws cannot be enforced directly-through the criminal law prohibiting certainactivities-they cannot be enforced through indirect, sporadic, discriminatory routes that escapethe same degree of public accountability." GEOFFREY R. STONE, Louis MICHAEL SEIDMAN,

CASS R. SUNSTEIN, MARK V. TUSHNET & PAMELA S. KARLAN, CONSTITUTIONAL LAW 842

(6th ed. 2009). So, in other words, a law may be unacceptably intrusive to the public, butbecause opportunities for public resistance have been limited, court policing of that boundary isnecessary.

193. Griswold v. Connecticut, 381 U.S. 479 (1965).

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prove a more reliable method of identifying fundamental rights thanjudicial review, which inevitably hews instead to the "personal andprivate notions" 94 of judges: "Our Court certainly has no machinerywith which to take a Gallup Poll. And the scientific miracles of thisage have not yet produced a gadget which the Court can use todetermine what traditions are rooted in the '[collective] conscience ofour people.""' In a 2010 dissent, Justice Stevens insisted that "[a]llAmericans can [and that] all Americans should" interpret theFourteenth Amendment and that "courts should be 'guided by whatthe American people throughout our history have thought"' inidentifying fundamental rights. 96 The Court's explanation of the needfor substantive due process review in Meyer v. Nebraska'"9 similarlyunderscored the connection between judicial and lay attitudes aboutthe appropriate sphere of government conduct. The Court recountedthat Plato had endorsed, and Sparta in fact had practiced, the removalof children from the care of their parents to be raised by "officialguardians."'98 The Court then capitalized on the presumedrepugnance of this practice to explain that

[a]lthough such measures have been deliberately approved by menof great genius, their ideas touching the relation between individualand State were wholly different from those upon which ourinstitutions rest; and it hardly will be affirmed that any legislaturecould impose such restrictions upon the people of a State withoutdoing violence to both letter and spirit of the Constitution.1

The Court's rhetorical mechanism-providing an example designedto inspire a gut reaction against government overstepping-nicelycaptures the connection between the public response to laws thatconstrain liberty and substantive due process review, which purports

194. Id. at 519 (Black, J., dissenting) (quoting id. at 493 (Goldberg, J., concurring)) (internalquotation mark omitted).

195. Id. (alteration in original) (footnote omitted) (quoting id. at 493 (Goldberg, J.,concurring)). That substantive due process review has long permitted the Court to "activelyenforce values which a majority of the Justices felt were essential in our society even thoughthey had no specific textual basis in the Constitution," and thereby effectively to substitute theJustices' judgment for that of the legislature and the public, persists as a chief criticism ofsubstantive due process review. NOWAK & ROTUNDA, supra note 166, § 11.7, at 498.

196. McDonald v. City of Chicago, 130 S. Ct. 3020, 3099 n.22 (Stevens, J., dissenting)(quoting id. at 3052 (Scalia, J., concurring)).

197. Meyer v. Nebraska, 262 U.S. 390, 402-03 (1923) (striking down a law prohibiting theteaching of languages other than English).

198. Id. at 402.199. Id.

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to draw heavily upon widely held and accepted understandings of thelimits on government restrictions of individual liberty.

Finally, substantive due process review does not identifyfundamental rights in a vacuum.200 It requires that they be carefullydescribed and defined in relation to a challenged governmentaction.20

1' That an area is identified as one involving a fundamentalright does not preclude, or even subject to heightened scrutiny, anygovernment action touching on that subject; government action mustsatisfy heightened scrutiny only when a fundamental right has beeninfringed.2 0 Both the contours of the right itself and the judicialreview afforded in a particular case are indexed to the nature of thegovernment action.203 In other words, the Court evaluates not only thesubject matter-procreation, children, marriage-but also the specificmeans of government action-direct and total prohibition orincidental effect-to ascertain the existence of a fundamental rightand to determine whether that right has been infringed.2

04 Thus,substantive due process review provides guidance about how themanner and method of government action can affect the level ofperceived or actual constraint on individual freedom even when, aswith respect to environmentally significant individual behaviors,fundamental rights or freedoms are not necessarily implicated.

Public reactions to a proposed law's constraints on liberty, aswell as the judicial analysis underlying substantive due process, arethus grounded in murky instincts about the proper "relation betweenindividual and State."205 Additionally, substantive due process reviewprovides lessons not only about the subject matter and types ofliberties worthy of special protection but also about the means ofgovernment action that are generally most suspect in terms ofinfringing on liberties. For these reasons, explanations offered as part

200. McDonald, 130 S. Ct. at 3102 (Stevens, J., dissenting) (explaining that liberty claims arenot evaluated "on an abstract plane").

201. Washington v. Glucksberg, 521 U.S. 702, 721 (1997).202. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 873-75 (1992) (applying an

"undue burden" test and observing that the Court's "jurisprudence relating to allliberties ... has recognized [that] not every law which makes a right more difficult to exercise is,ipso facto, an infringement of that right").

203. Id.204. NOWAK & ROTUNDA, supra note 161, § 11.5, at 490-91 ("[A] determination that a

regulated activity comes within the constitutional definition of liberty does not determine themanner in which the Court will review restrictions on that activity. Only significant impairmentsof fundamental constitutional rights will be subject to strict judicial scrutiny ...

205. Meyer v. Nebraska, 262 U.S. 390, 402 (1923).

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of a substantive due process review as to when, how, and whygovernment action has infringed upon "deeply rooted"2

0 fundamentalrights and liberties-in particular those grounded in privacyinterests-can shed light on when, how, and why a law might meetpublic and political resistance because of a perception that it is undulyintrusive.

A review of a subset of substantive due process cases-thoseleading to the recognition of a fundamental right to privacy-revealsthat the individual behaviors targeted, the policy tool chosen tochange those behaviors, and the requirements of enforcement all helpdefine the perceived intrusiveness of government action. Twoprinciples can be gleaned from these cases, both of which help toilluminate the intrusion objection in the context of individualenvironmental mandates. First, direct mandates on individuals maybe understood to impose greater and more troublesome libertydeprivations than laws that constrain the same individual behaviorsindirectly through, for example, product mandates. Additionally,government restrictions on individual behaviors may arouse greaterresistance .when they apply to behaviors that occur in or near thehome or that must be enforced in or near the home. These principles,as well as their relevance for purposes of assessing the intrusionobjection, are described in the next Sections.

B. Direct Versus Indirect Regulation

The intrusion objection hypothesizes fatal resistance to mandatesimposed in the context of environmentally significant individualbehaviors. As discussed in Part I, the government already channels,influences, and regulates many of these behaviors through a variety ofindirect means.20 The government regularly alters individualenvironmental behaviors and reduces or increases the environmentalimpacts of individual behaviors without imposing mandates directlyon individuals. Most notably, product mandates constrain and, insome cases, extinguish individual choice.2" A variety of subsidies,taxes, and public-information campaigns encourage environmentallyfriendly behaviors, such as the use of public transportation, or

206. Glucksberg, 521 U.S. at 721 (quoting Moore v. City of East Cleveland, 431 U.S. 494,503 (1977) (plurality opinion)) (internal quotation mark omitted).

207. As discussed in Part IA, some laws do directly regulate environmentally significantindividual behavior, but the primary mode of federal regulation of such behaviors is indirect.

208. For a discussion of product mandates, see supra note 45.

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discourage environmentally harmful behaviors. Building-code andzoning requirements define the built environment and therebyconstrain choices about where and how individuals may live,significantly impacting individual energy consumption. 2

0 Moreover,as described in Part I, at least some direct regulation ofenvironmentally significant individual behaviors already occurswithout inspiring insurmountable intrusion objections, primarily atthe local level. 21 0 Thus, it appears that individual environmentalbehaviors are not sacrosanct subject matter per se; insurmountableintrusion objections do not arise merely because the governmentadopts measures designed to change these behaviors. Indeed, the ideathat government may appropriately act to control or influence thesebehaviors indirectly seems to be widely accepted. The intrusionobjection appears, then, to be rooted at least in part in the meansused by government-the imposition of mandates directly onenvironmentally significant individual behaviors.

Mandates directly proscribe individual behaviors. To illustratethe difference between direct mandates and policies that indirectlyregulate individual behaviors, consider energy-conservationmeasures. As discussed in Part I, the government employs a variety ofstrategies to reduce home energy use. It requires that homeappliances meet minimum efficiency standards,21' funds public-information campaigns,2 12 maintains energy-efficiency labelingschemes,213 and subsidizes home weatherization.2' It does not,however, directly bar individuals from using appliances that do notmeet efficiency standards, let alone proscribe even readily detectedbehavior that wastes energy, such as leaving the porch lights burningall night or opening windows during the winter. One could easily

209. For a description of green building and zoning codes, see supra note 46 andaccompanying text.

210. For a description of laws that directly regulate environmentally significant individualbehaviors, see supra Part .B and accompanying text..

211. 42 U.S.C. §§ 6291-6309 (2006).212. See, e.g., LOSE YOUR EXCUSE, http://www.loseyourexcuse.gov/index.html (last visited

Feb. 14, 2012) (featuring an energy-efficiency educational campaign organized by the U.S.Department of Energy).

213. The Energy Star labeling program was commenced by the EPA pursuant to itsauthority under section 103(g) of the CAA, 42 U.S.C. § 7403 (2006), and is now administeredjointly with the Department of Energy pursuant to section 324A of the Energy Policy andConservation Act, 42 U.S.C. § 6294a (2006). See supra note 39 and accompanying text.

214. 10 C.F.R. §H 440.1-.30 (2011); see also 42 U.S.C. § 6861 (2006) (outlining thecongressional findings and purpose of the weatherization-assistance program).

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imagine the resistance that would likely greet proposals to ticketindividuals for using banned appliances. What then, if anything, is thesalient difference between effectively preventing individuals fromusing inefficient appliances through product mandates and directlybarring them from doing so?

The reasoning employed in the early contraception cases thatlaid the groundwork for recognizing a fundamental right to privacy-the dissents of Justices Douglas and Harlan in Poe v. Ullman215 andthe decision in Griswold-proves particularly useful for thinkingabout this issue.21 These cases formally announced the use ofsubstantive due process to protect privacy interests217 but, at that earlyjuncture, did not advance a fully formed concept of "substantive"privacy, or privacy that "attaches to the rightholder's own actions" by"immunizing certain conduct-such as using contraceptives, marryingsomeone of a different color, or aborting a pregnancy-from stateproscription or penalty." 218 Instead, while hinting at the substantiveconcept of privacy to come, these decisions anchored their holdings in"informational" privacy,21 9 a view of privacy found in the context of

215. Poe v. Ullman, 367 U.S. 497 (1961).216. The privacy interests considered in the context of the Fourth Amendment, with respect

to the significance of the home, may prove another useful analogue, particularly as the Courtconfronts challenges to the government's collection of personal data. See infra note 244; see alsoUnited States v. Karo, 468 U.S. 705, 716 (1984) (limiting, on Fourth Amendment grounds, themonitoring of a beeper brought into a home and observing that "[i]ndiscriminate monitoring ofproperty that has been withdrawn from public view would present far too serious a threat toprivacy interests in the home to escape entirely some sort of Fourth Amendment oversight");Whalen v. Roe, 429 U.S. 589, 591 (1977) (considering "whether the State of New York mayrecord, in a centralized computer file, the names and addresses of all persons who haveobtained, pursuant to a doctor's prescription, certain drugs for which there is both a lawful andan unlawful market" consistent with the privacy interests protected under the FourteenthAmendment).

217. Two Lochner-era cases, Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Societyof Sisters, 268 U.S. 510 (1925), can be viewed as the first privacy cases, though they do not usethat terminology. See Jed Rubenfeld, The Right of Privacy, 102 HARV. L. REv. 737, 743 (1989)(identifying these cases as the "true parents of the privacy doctrine").

218. Rubenfeld, supra note 217, at 740.

219. See John Hart Ely, The Wages of Crying Wolf A Comment on Roe v. Wade, 82 YALEL.J. 920, 929-30 (1973). Professor Ely explains how Roe announced a new and more substantiveright to privacy. He observes that although Roe cited to "aspects of the First, Fourth and FifthAmendments . . . [that] limit the ways in which, and the circumstances under which, thegovernment can go about gathering information about a person he would rather it did nothave," Roe "is not a case about government snooping." Id.; see also Rubenfeld, supra note 217,at 749 (explaining the distinction between informational privacy-which has its origins in theFourth Amendment-and substantive privacy and observing that in informational privacy cases,"the claimant's substantive conduct [is] irrelevant; at issue is the government's manner ofdiscovering the conduct").

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the Fourth Amendment, under which privacy is "employed to governthe conduct of other individuals who intrude in various ways uponone's life" by "limit[ing] the ability of others to gain, disseminate, oruse information about oneself." 220 Accordingly, these cases, instead offocusing primarily on whether or why the use of contraceptives isconduct that is substantively outside the scope of state regulation,devoted much more attention to analyzing whether and how themeans adopted by the government independently infringed uponprivacy and liberty.221 This approach is thus more relevant toconsidering mandates governing environmentally significantindividual behaviors that will rarely touch on the right to privacy orother fundamental rights.

The analysis in these cases supports the view that a significantdistinction exists between the perceived liberty deprivations imposedby measures that indirectly influence individual behaviors and thoseimposed by measures that directly mandate changes in individualbehaviors. Even when the results in terms of governmentally inducedchanges in behaviors are the same, direct mandates on individualbehaviors often impose greater, or at least more salient, restrictionson freedom. In his dissent in Poe, Justice Douglas explained that ifthe prohibition on the use of contraceptives challenged in that casehad been directed at the sale or manufacture of contraceptives, as

220. Rubenfeld, supra note 217, at 740.

221. See Ely, supra note 219, at 930 ("[Tlhe Court in Griswold stressed that it wasinvalidating only that portion of the Connecticut law that proscribed the use, as opposed to themanufacture, sale, or other distribution of contraceptives. That distinction (which would be silly

were the right to contraception being constitutionally enshrined) makes sense if the case is

rationalized on the ground that the section of the law whose constitutionality was in issue was

such that its enforcement would have been virtually impossible without the most outrageoussort of governmental prying into the privacy of the home. And this, indeed, is the theory onwhich the Court appeared rather explicitly to settle . . . ." (emphasis omitted) (footnote

omitted)); see also Carey v. Population Servs. Int'l, 431 U.S. 678, 687 (1977) ("Griswold did statethat by 'forbidding the use of contraceptives rather than regulating their manufacture or sale,'the Connecticut statute there had 'a maximum destructive impact' on privacy rights. Thisintrusion into 'the sacred precincts of marital bedrooms' made that statute particularly'repulsive.' But subsequent decisions have made clear that the constitutional protection ofindividual autonomy in matters of childbearing is not dependent on that element." (emphasis

omitted) (citations omitted) (quoting Griswold v. Connecticut, 381 U.S. 479, 485 (1965))). Seegenerally Solove, supra note 30, at 557, 559 (characterizing the early contraception cases asprotecting against "decisional interference," or "governmental interference with people'sdecisions regarding certain matters of their lives," but adding that "[d]ecisional interferencebears a similarity to the harm of intrusion as both involve invasions into realms where we

believe people should be free from the incursions of others").

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opposed to their use by individuals, it would not have risen to thesame level of concern:

If a State banned completely the sale of contraceptives in drugstores, the case would be quite different. It might seem to some or toall judges an unreasonable restriction. Yet it might not be irrationalto conclude that a better way of dispensing those articles is throughphysicians. The same might be said of a state law banning themanufacture of contraceptives. Health, religious, and moralarguments might be marshalled pro and con. Yet it is not for judgesto weigh the evidence. Where either the sale or the manufacture isput under regulation, the strictures are on business and commercialdealings that have had a long history with the police power of theStates.

The present law, however, deals not with sale, not withmanufacture, but with use. It provides:

"Any person who uses any drug, medicinal article or instrument forthe purpose of preventing conception shall be fined not less thanfifty dollars or imprisoned not less than sixty days nor more than oneyear or be both fined and imprisoned." 222

Justice Douglas also quoted a "noted theologian" who had observedthat "[t]he real area where the coercions of law might, and ought to,be applied, at least to control an evil-namely, the contraceptiveindustry-is quite overlooked." 223

Similarly, in his dissent Justice Harlan emphasized "theobnoxiously intrusive means [Connecticut] ha[d] chosen to effectuate

[its] policy." 224 He suggested that the same result might have beenachieved by limiting distribution, but he deemed dispositive the factthat the statute defined use by individuals as a crime:

[C]onclusive, in my view, is the utter novelty of this enactment.Although the Federal Government and many States have at onetime or other had on their books statutes forbidding or regulatingthe distribution of contraceptives, none, so far as I can find, hasmade the use of contraceptives a crime.

222. Poe v. Ullman, 367 U.S. 497, 519 (1961) (Douglas, J., dissenting) (emphasis omitted)(quoting CONN. GEN. STAT. § 53-32 (1958) (repealed 1969)).

223. Id. at 521 (quoting JOHN COURTNEY MURRAY, WE HOLD THESE TRUTHS: CATHOLICREFLECTIONS ON THE AMERICAN PROPOSITION 157 (1960)).

224. Id. at 554 (Harlan, J., dissenting).

225. Id. (emphasis omitted).

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Justice Harlan then explained that the government may adopt avariety of approaches to target the same behavior, identified otherways that the government might have gone about reducing the use ofcontraceptives, and argued that a direct prohibition on individual usepresents a particularly troublesome means of influencing behavior:

The secular state is not an examiner of consciences: it must operatein the realm of behavior, of overt actions, and where it does sooperate, not only the underlying, moral purpose of its operations,but also the choice of means becomes relevant to any Constitutionaljudgment on what is done. The moral presupposition on whichappellants ask us to pass judgment could form the basis of a varietyof legal rules and administrative choices, each presenting a differentissue for adjudication. For example, one practical expression of themoral view propounded here might be the rule that a marriage inwhich only contraceptive relations had taken place had never beenconsummated and could be annulled. Again, the use ofcontraceptives might be made a ground for divorce, or perhaps taxbenefits and subsidies could be provided for large families. Other

226examples also readily suggest themselves.

In short, Justice Harlan found the Connecticut statute particularlyproblematic in part because it applied directly to individual behavior.When the Court ultimately struck down Connecticut's birth-controllaw in Griswold, it continued to find the indirect-direct distinctionsignificant, explaining,

[The] law . . . , in forbidding the use of contraceptives rather thanregulating their manufacture or sale, seeks to achieve its goals bymeans having a maximum destructive impact upon that [marital]relationship. Such a law cannot stand in light of the familiarprinciple, so often applied by this Court, that "a governmentalpurpose to control or prevent activities constitutionally subject tostate regulation may not be achieved by means which sweepunnecessarilD broadly and thereby invade the area of protectedfreedoms."22

This analysis is not meant to suggest that the sole fact that thebirth-control laws applied to individual behavior drove thedetermination that they presented a substantive due processviolation. The dissents in Poe and the decision in Griswold focused as

226. Id. at 547-48 (emphasis omitted) (citation omitted).

227. Griswold v. Connecticut, 381 U.S. 479, 485 (emphasis omitted) (quoting NAACP v.

Alabama, 377 U.S. 288, 307 (1964)).

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well on the private nature of the decision involved-thus offering anearly articulation of a substantive privacy interest-and on method ofenforcement: exacerbating the infringement on informational privacy,the prohibition "reache[d] into the intimacies of the marriagerelationship" and required entry into the home for its enforcement.2But by articulating the direct-indirect distinction and by finding itsignificant, these cases provide support for an assumption underlyingthe intrusion objection: namely, that direct regulation of individualbehaviors may be expected to give rise to or to create perceptions ofgovernment overstepping, even when indirect regulation operates,without objection, to control the same behaviors for the same end.

Justice Douglas suggested two possibilities for why mandates onindividual behaviors present special concerns: first, the meansnecessary to enforce mandates on individuals may independentlyimpose or exacerbate liberty deprivations; and second, individuals,unlike "business and commercial dealings," do not have a "longhistory with the police power of the States."229 With respect to the firstpossibility, the means-a prohibition on use-may create problemsby requiring enforcement through "governmental snooping" thatincludes "intolerably intrusive modes of data-gathering." 23 0 Suchenforcement might even require, as discussed in Section C,encroachment on the most readily recognized sphere of privateconduct: the home.231 Indeed, those aspects of the First, Fourth, andFifth Amendments that establish the penumbra that shelters privacyrights "all limit the ways in which, and the circumstances under which,the government can go about gathering information about a personhe would rather it did not have." 232

The latter point-distinguishing between businesses andindividuals-could be understood as part of the effort to index

228. Poe, 367 U.S. at 519 (Douglas, J., dissenting); see also Griswold, 381 U.S. at 485("Would we allow the police to search the sacred precincts of marital bedrooms for telltale signsof the use of contraceptives?"). Moreover, this analysis should not be read to make arepresentation about whether, under current doctrine, a prohibition on the sale or manufactureof contraceptives would give rise to a substantive due process violation. Indeed, the undue-burden approach employed in Carey v. Population Services International, 431 U.S. 678 (1977),and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), indicatesthat it would.

229. Poe, 367 U.S. at 519 (Douglas, J., dissenting).

230. Ely, supra note 219, at 930.231. For a discussion of the objections to using RFID chips to monitor recycling rates and

enforce recycling ordinances, see supra notes 71-72 and accompanying text.

232. Ely, supra note 219, at 929.

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substantive due process doctrine to national tradition and custom.Thus, if government control over a particular type of individualbehavior is not usual or customary, it is more vulnerable undersubstantive due process review. Another related explanation issuggested by Professor Lawrence Lessig's observation that "[o]urconstitution was written with direct regulation in mind-not becausethe framers did not understand indirect regulation, but rather becauseits significance was not great enough systematically to account."2 33

Notably, Professor Lessig goes on to suggest that in light of theubiquity of indirect regulation, more attention should be given toweighing the constitutionality of indirect regulation.234

Additionally, mandates on individual behaviors make moreexplicit-and hence uncomfortable-the balancing of governmentinterests against personal autonomy. Personal autonomy is oftenidentified as the basis for recognizing a right to privacy and, asProfessor Richard Fallon notes, is an "interest[ ] that rights serve inour constitutional culture":

As beings who are capable of self-direction, we have an interest inbeing able to make decisions for ourselves and to act on thosedecisions that is sometimes independent of the interest in having thedecision made that will be best for us in the sense of producing thegreatest after-the-fact well-being.235

With respect to the energy-efficiency product mandate discussedpreviously in this Section, personal autonomy is arguably constrainedin much the same substantive way as it would be by a directprohibition. Whether the regulation is imposed by constrainingconsumer choice through a product mandate or by a prohibition onthe use of inefficient appliances, both measures effectively restrict

* * 236individual freedom to use energy-inefficient appliances. In thecontext of the product mandate, however, the government constraint

233. Lessig, supra note 10, at 688.234. Id.235. Richard H. Fallon, Jr., Individual Rights and the Powers of Government, 27 GA. L.

REv. 343, 354 (1993).236. Although perhaps more palatable because the constraints on choice are hidden,

product mandates, norm management, and other forms of indirect regulation that do not allowindividuals the opportunity to weigh a law before obeying it arguably impose greater or moretroubling constraints on freedom. See Posner, supra note 164, at 367 (arguing that internalizednorms deprive individuals of the opportunity to weigh obedience to the law and thereby limitfreedom).

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is enforced against the manufacturer and is less apparent to theindividual.

The early privacy cases thus articulate and defend a distinctionbetween the direct and indirect regulation of individuals that isrelevant in evaluating the extent or nature of the liberty deprivation.Regardless of its explanation, the proposition that direct restraints onindividuals can give rise to greater-or at least more uncomfortable-restrictions on freedom than measures that constrain the samebehaviors indirectly proves useful for thinking about mandates as apolicy tool in the context of the environment.23 That a host of lawsmay already indirectly control environmentally significant individualbehaviors should not be taken as evidence that a direct mandate onthe same behaviors would be accepted. More fundamentally, theearly privacy cases suggest that direct regulation may be perceived asmore intrusive, and thus may occasion more frequent or morestrident intrusion objections, than the more familiar and morecommon mode of indirect regulation. In short, the early privacy casessuggest that intrusion objections may be a more salient considerationwhen evaluating direct, as opposed to indirect, mandates onenvironmentally significant individual behaviors.

C. The Significance of Home

One of the explanations offered in the early privacy cases as towhy direct mandates on individual behaviors present special concernsis that their enforcement can be intrusive, particularly when theregulated behaviors occur in the home.238 And the home has long

237. It perhaps confirms the obvious to state that a prohibition is more intrusive thandiscouragement or encouragement, both of which preserve some element of choice. Seegenerally Sunstein, Social Norms, supra note 27, at 952 (identifying tools available to thegovernment to change norms and observing that "[tihe most intrusive kind of governmentaction is of course straightforward coercion," such as seatbelt laws (emphasis omitted)). Thedistinction between direct and indirect government action does, however, shed light on the lessreadily explained difference in reactions to direct mandates on behavior and indirect productmandates that impose the same substantive constraints on choice.

238. Poe v. Ullman, 367 U.S. 497, 519 (1961) (Douglas, J., dissenting); see also Ely, supranote 219, at 930 (arguing that the distinction in Griswold between the regulation of use on theone hand and the regulation of the manufacture, sale, or distribution on the other was indexedto the required means of enforcement, which in the former case "would have been virtuallyimpossible without the most outrageous sort of governmental prying into the privacy of thehome" (emphasis omitted)).

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been afforded special status in a variety of legal contexts.23 9 Similarly,one of the chief explanations for the intrusion objection is thatenvironmentally significant individual behaviors "usually occur athome or in the immediately surrounding area" and that efforts todetect or enforce against those behaviors will necessarily intrude intothe home, thereby triggering privacy and liberty objections.240

Discussions of the significance of the home in substantive dueprocess cases suggest both a thin and a thick account of how the homeaffects the apparent or actual intrusiveness of government conduct.Under a thin account, grounded in traditional, Fourth Amendment-derived concepts of informational privacy, the physical space withinand around the home is uniquely private and requires specialprotection from government snooping. Any regulation that requiresfor its enforcement real or potential government investigation intothe home thus poses heightened concerns. Under a thick account,grounded in substantive conceptions of privacy, the fact that conductoccurs at least mostly in the home-"life which characteristically hasits place in the home" 241-signals that the conduct itself may warrantheightened privacy protection. Even absent any government entryinto the home, government interference with the details of certainspheres of private or home-centered behaviors may thus give rise tovalid claims of government overreaching. In his opinion for the Courtin Lawrence v. Texas,242 Justice Kennedy drew a similar distinction:

Liberty protects the person from unwarranted governmentintrusions into a dwelling or other private places. In our tradition theState is not omnipresent in the home. And there are other spheresof our lives and existence, outside the home, where the State shouldnot be a dominant presence. Freedom extends beyond spatialbounds. Liberty presumes an autonomy of self that includes freedomof thought, belief, expression, and certain intimate conduct. Theinstant case involves liberty of the person both in its spatial and in itsmore transcendent dimensions.243

239. McDonald v. City of Chicago, 130 S. Ct. 3020, 3105 (2010) (Stevens, J., dissenting)(listing cases and observing that "our law has long recognized that the home provides a kind ofspecial sanctuary in modern life").

240. Babcock, supra note 4, at 123.241. Poe, 367 U.S. at 551 (Harlan, J., dissenting).242. Lawrence v. Texas, 539 U.S. 558 (2003).243. Id. at 562.

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First, as to the thin account of the significance of the home,substantive due process cases recognize the home as a private spacewarranting special protection from government invasion.2 " The homeis considered "the most private of places,"245 and laws that wouldrequire "police invasion"24 6 of the home for their enforcement aredeemed particularly suspect.247 Although even private behavior thatoccurs within the home can sometimes be regulated, the cases makeclear that "public behavior" is more amenable to regulation than"that which is purely consensual or solitary."248 Even in the absence ofactual enforcement, the prospect of possible enforcement in the homecan be used to illustrate a law's offensiveness. As explained by JusticeDouglas, discussing a ban on the use of contraceptives that had notbeen enforced against individuals, "If we imagine a regime of fullenforcement of the law . .. ,we would reach the point where searchwarrants issued and officers appeared in bedrooms to find out whatwent on.... If [the State] can make this law, it can enforce it."249

244. The concept of the sanctity of the home generally is not limited to or even rooted insubstantive due process. See, e.g., D. Benjamin Barros, Home as Legal Concept, 46 SANTACLARA L. REV. 255, 259-76 (2006) (reviewing treatment of the home in a variety of legalcontexts, including in the context of the Fourth Amendment and the protection of privacyinterests). Express constitutional provisions-most notably the Fourth Amendment-and anumber of related doctrines similarly afford the home special protection. See U.S. CONST.amend. III ("No Soldier shall, in time of peace be quartered in any house, without the consentof the Owner, nor in time of war, but in a manner to be prescribed by law."); U.S. CONST.amend. IV ("The right of the people to be secure in their persons, houses, papers, and effects,against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue,but upon probable cause, supported by Oath or affirmation, and particularly describing theplace to be searched, and the persons or things to be seized."); see also Stanley v. Georgia, 394U.S. 557, 564 (1969) (invalidating a law barring possession of obscene materials and observingthat in the "privacy of a person's own home-[the First Amendment] right takes on an addeddimension"). For a discussion of how the concept of the sanctity of the home has influencedunderstandings of the scope of Fourth Amendment protections, see Margaret Jane Radin,Property and Personhood, 34 STAN. L. REv. 957, 996-1002 (1982). From a property perspective,Professor Margaret Radin explains that the home is property that can be understood as"personal," or important for personhood, and therefore "worthier of protection" than othertypes of property. Id. at 987.

245. Lawrence, 539 U.S. at 567.246. Poe, 367 U.S. at 521 (Douglas, J., dissenting) (quoting MURRAY, supra note 223, at

158).247. See id. at 547-48 (Harlan, J., dissenting) ("This enactment involves what, by common

understanding throughout the English-speaking world, must be granted to be a mostfundamental aspect of 'liberty,' the privacy of the home in its most basic sense .... ).

248. Id. at 546 (emphasizing the sanctity of the home but identifying exceptions, includingthe government's regulation of marriage and adultery).

249. Id. at 520-21 (Douglas, J., dissenting) (emphasis added); see also id. at 554 (Harlan, J.,dissenting) ("To me the very circumstance that Connecticut has not chosen to press the

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If this thin account indeed defines the significance of the homefor purposes of assessing the intrusiveness of government conduct,then it has important implications. It suggests the possibility thatwhen environmentally significant behaviors-even those that occurwithin the home-can be regulated, detected, and enforced againstwithout encroaching upon the home, regulation may avoid or dampenintrusion objections. As noted, a number of environmentallysignificant behaviors are either external to the home or have anexternal aspect.250 A thin account of the significance of the homesuggests that these behaviors may be amenable to regulation withouttriggering intrusion objections.

If, however, the home has a more substantive, thickersignificance that affords special status to conduct that occurs withinthe home, the conclusions with respect to the intrusion objection maybe quite different. That conduct occurs primarily in a physical spacewithin and around the home is sometimes offered as a justification forwhy the conduct itself falls within the scope of substantive privacyprotections. In his dissent in Poe, Justice Harlan explained that whatwas relevant to him was not whether there had been an "intrusioninto the home," but whether there had been an intrusion "on the lifewhich characteristically has its place in the home," because "if thephysical curtilage of the home is protected, it is surely as a result ofsolicitude to protect the privacies of the life within."251

Similarly, in Stanley v. Georgia,252 a decision that struck down alaw prohibiting the possession of obscene materials, the Courtreasoned that First Amendment rights are strengthened by dueprocess privacy considerations when the regulated conduct occurs inthe home. The Court referenced a "fundamental ... right to be free,except in very limited circumstances, from unwanted governmental

enforcement of this statute against individual users, while it nevertheless persists in asserting itsright to do so at any time-in effect a right to hold this statute as an imminent threat to theprivacy of the households of the State-conduces to the inference either that it does notconsider the policy of the statute a very important one, or that it does not regard the means ithas chosen for its effectuation as appropriate or necessary."). A study that asked people to rankthe intrusiveness of government searches similarly revealed that searches of the home areviewed as more intrusive than many other types of searches. Slobogin & Schumacher, supranote 21, at 738.

250. For example, commuter and household-waste-disposal choices are two environmentallysignificant behaviors with external aspects. See supra notes 37-42 and accompanying text.

251. Poe, 367 U.S. at 551 (Harlan, J., dissenting).

252. Stanley v. Georgia, 394 U.S. 557 (1969).

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intrusions into one's privacy";253 posited that the protected sphere ofindividual privacy includes, most importantly, individual"beliefs, .. . thoughts, . . . emotions and . . . sensations"; 254 observed

that "[o]ur whole constitutional heritage rebels at the thought ofgiving government the power to control men's minds";" and set forththe home as a space particularly important to the flourishing ofprivate thoughts.256

Professor Margaret Radin offers another thick conception of thesignificance of the home from a property perspective. With respect to"reason[s] the government should not prescribe what one may do inone's home," she recognizes the familiar need to protect liberty byprotecting a "realm shut off from the interference of others," but shealso adds the idea that the home is important for personhood becauseit is where "one embodies or constitutes oneself."2 " The location ofconduct in the home thus supports identification of the conduct itselfas private and as outside the scope of government intervention.25

To illustrate the significance of this thicker notion of thesignificance of the home, consider the following example. Recall theSan Francisco ordinance described in Part I that mandates thecomposting of degradable trash and that is enforced by randomchecks of household waste for degradable material.259 Under a thinconception of the significance of the home, indexed to informationalprivacy and the Fourth Amendment, there should be limited room for

253. Stanley v. Georgia, 394 U.S. 557, 564 (1969).

254. Id. (quoting Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J.,dissenting), overruled on other grounds by Katz v. United States, 389 U.S. 347 (1967), and

Berger v. New York, 388 U.S. 41 (1967)).255. Id. at 565.256. Id. at 566. The Court went on to reference a person's "right to satisfy ... intellectual

and emotional needs in the privacy of his own home" and to endorse the proposition "that a

State has no business telling a man, sitting alone in his own house, what books he may read or

what films he may watch." Id. at 565.

257. Radin, supra note 244, at 992.258. So, for example, if autonomy is viewed as the principle underlying the right to privacy,

then perhaps the fact that conduct occurs in the privacy of the home makes it more likely to beimportant to personhood. If antitotalitarianism is identified as the principle underlying the rightto privacy, then perhaps the fact that conduct occurs in the privacy of the home creates a greater

imperative to protect that conduct from government intervention to avoid "mind control."

259. S.F., CAL., ENVIR. CODE § 1908 (2011) (authorizing fines of up to $100 for households

that fail to properly sort their recyclables and compostables and authorizing inspection of trashreceptacles).

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individuals to complain.26 Under a thicker conception of the home,

the same regulation may provide ground for objection and mayrequire special justification, not necessarily or solely because of themethod or means of government "snooping," but on a moresubstantive level-discomfort about government regulation of thedetails of individuals' food choices and preparation.

In short, even when the government is able to enforce mandatesdirected at small, day-to-day behaviors that occur within the home viasome information external to the home, those mandates mayencounter privacy and liberty objections, although not of aconstitutional nature. Whether the constitutionally recognizedprivacy interest is grounded in personal autonomy orantitotalitarianism, one can easily see the source of the objections.The imperative to conform small, mundane home-life decisions andbehaviors-do I throw the carrot peels in the trash or a compostbin?-to government regulations raises the specter of weighing downone's home life with worries about legal compliance. These worriesare particularly problematic when the law is viewed as infringingupon personal autonomy,261 either by preventing the home fromproviding a space for unfettered thinking, reflection, and thedevelopment of personhood or by threatening a kind of totalitarianstandardization and "mind control." 262

260. California v. Greenwood, 486 U.S. 35, 35 (1988) (allowing warrantless searches ofgarbage).

261. Indeed, one of the critiques of grounding the constitutionally protected right to privacy

in personal autonomy is the lack of a limiting principle because even the smallest decisions helpdefine personhood. See Rubenfeld, supra note 217, at 754-55 ("The personhood thesis is this:where our identity or self-definition is at stake, there the state may not interfere. . . . Where is

our self-definition not at stake? Virtually every action a person takes could arguably be said tobe an element of his self-definition." (emphasis omitted)).

262. Stanley v. Georgia, 394 U.S. 557, 565 (1969). In arguing that the right to privacy is best

grounded in antitotalitarian rationales, Professor Jed Rubenfeld posits that, properly

understood, the right to privacy prevents the state from dictating conduct that has significant,ongoing affirmative consequences for individuals-bearing a child, for example. Rubenfeld,supra note 217, at 784. Small day-to-day behaviors would not warrant constitutional protectionfrom government interference under this standard. Id. But Professor Rubenfeld's description ofthe antitotalitarian rationale suggests that the concerns potentially raised by government control

over such mundane day-to-day behaviors, if not cognizable as a constitutional matter, may well

inform public reaction:The danger, then, is a particular kind of creeping totalitarianism, an unarmedoccupation of individuals' lives. That is the danger of which Foucault as well as theright to privacy is warning us: a society standardized and normalized, in which livesare too substantially or too rigidly directed. That is the threat posed by state power inour century.

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This thicker account of the significance of the home raises thepossibility that direct government involvement in a certain sphere ofday-to-day behavior understood as private will therefore be subject tointrusion objections even if the government is able to detect andenforce against these behaviors in ways that are external to the homeand its environs. As the Court cautioned in Washington v.Glucksberg ,263 "That many of the rights and liberties protected by theDue Process Clause sound in personal autonomy does not warrantthe sweeping conclusion that any and all important, intimate, andpersonal decisions are so protected." 2

64 But, of course, for presentpurposes, the question is not whether an activity falls within the scopeof constitutional protection, but rather whether its regulation isinterpreted as government overreaching and, thus, as intrusion.Substantive due process cases do not merely reveal that a certain classof particularly important personal decisions is protected fromgovernment interference. They also reflect the view-also expressedin the context of the Fourth Amendment-that a sphere of freedomfrom government interference within the home is an important andrecognized element of individual liberty and privacy. Individualbehaviors within the home-even unimportant, day-to-day actions-may fall within a sphere in which government interference is notwelcome. Accordingly, policymakers should be cautious aboutpresuming that simply identifying an external way to detect andenforce against environmentally significant individual behaviors willentirely deflect intrusion objections.

III. DISCERNING PRINCIPLES

The analysis in Parts I and II suggests a few principles forclarifying the significance of the intrusion objection with respect tomandates and considering possibilities for successfully designing andapplying mandates governing environmentally significant individualbehaviors. Existing regulations demonstrate that indirect regulation isthe predominant mechanism through which the government seeks toinfluence environmentally significant individual behaviors. Thereasoning employed in the early privacy cases similarly suggests that

Id. See generally Fallon, supra note 235, at 355 (identifying 'systemic' interests in avoidingabuse of government power or the collection of excessive power in the hands of government" asone of four primary interests underlying constitutional rights).

263. Washington v. Glucksberg, 521 U.S. 702 (1997).264. Id. at 727.

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with respect to controlling individual behaviors, direct regulation ofbehaviors may be perceived as, or may in fact occasion, a greaterliberty concern than indirect regulation of the same behaviors. Directregulation of individuals may present liberty concerns because themeans used to enforce the regulation may invade privacy. Theseconcerns are likely to be particularly pronounced when the activitybeing regulated occurs primarily in the home or when governmentenforcement necessarily crosses the boundaries of the home. Theseobservations confirm a core precept underlying the intrusionobjection: namely, that even when indirect and direct regulation seekto change the same behaviors, direct controls on environmentallysignificant individual behaviors may, because of their means ofenforcement, be particularly vulnerable to claims of governmentintrusion, particularly when the behaviors in question are householdbehaviors.

This analysis also, however, suggests that the obstacle that theintrusion objection poses to the use of mandates on environmentallysignificant individual behaviors is both narrower and broader thanpresently understood. A review of existing regulations reveals a broadspectrum of grounds for public opposition to direct controls onenvironmentally significant individual behaviors: unfairness inallocating the burdens of environmental protection; interference withproperty rights; or straightforward balancing, which reveals that themeasure is too inconvenient or costly to justify the desired result. Thisreview provides evidence of a more general phenomenon: namely,that direct regulation of environmentally significant individualbehaviors is more likely than indirect regulation to spur publicobjection because it makes the costs borne by individuals clearer tothose individuals. Viewed in this way, intrusion-either in itsnarrower sense grounded in privacy concerns, or understood moreloosely as government overreaching-can be understood as simplyone cost of regulation.

Direct regulation may often render the costs imposed onindividuals more transparent than many methods of indirectregulation. For example, indirect measures to reduce car use, such aszoning limitations on parking, higher gas prices, or commuter lanes,may cause an individual to submit to the inconvenience of carpooling.The individual may not, however, connect this inconvenience cost tothe government measures that are indirectly causing the individual tobear it. But a direct mandate requiring the individual to carpoolwould impose clear convenience costs. Similarly, a product mandate

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requiring, for example, that paper towels contain X percent recycledpaper may effectively extinguish consumer choice-a cost imposed onindividuals-by rendering certain goods unavailable. Yet unless themandate attracts unusual public debate and attention, as was the casewith product mandates applicable to incandescent light bulbs,individuals might never be aware that their choice has been solimited. A direct ban on the use of paper towels containing less thanX percent recycled paper, however, would make the limitation onindividual choice, and hence the cost imposed on individuals, clear.And indirect regulation aimed at upstream producers andmanufacturers-such as effluent limits applied to factories orrestrictions on pesticides used to grow cotton-in an attempt toreduce the environmental impacts occasioned when an individualpurchases a shirt, for example, likely raises the cost to the individual,but the individual may well be unaware of how environmentalregulation is driving that additional cost.

Direct regulation thus invites greater public objection by not, inthe manner of some common methods of indirect regulation,obscuring the tradeoffs and costs imposed on individuals. Notably,when the costs imposed on individuals are clear, even indirectregulation of individuals can encounter insurmountable politicalresistance, as sometimes occurs with taxes or as occurred with thewell-publicized product mandates dictating changes in theincandescent light bulb. Thus, the intrusion objection might beviewed more broadly as a recognition that direct regulation ofenvironmentally significant individual behaviors may be expected tospur more pronounced public opposition simply because it invites thepublic to evaluate the propriety of government action by balancingthe benefits of that action against the unobscured costs to individuals,including the intrusion cost of the action.265

The intrusion objection also appears to present a narrower, orless complete, obstacle to the use of mandates than presentlyunderstood. A survey of existing regulations suggests that thevulnerability of direct mandates to public opposition on the intrusionground should not be viewed as a fatal Achilles' heel of mandates as apolicy tool. A review of existing regulation reveals that directregulation of environmentally significant individual behaviors is notan area per se off-limits to government. Direct regulation of

265. It is fair to emphasize the particular salience of intrusion objections in contexts in whichthe behavior regulated occurs within, or enforcement requires access to, the home.

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environmentally significant individual behaviors, although lesscommon than indirect regulation, occurs daily in a variety of forms indifferent communities, from recycling laws to burn limitations tovehicle inspections. Moreover, my analysis suggests strategies fordesigning and applying mandates to minimize or overcome publicobjections. Mandates are more likely to succeed when they do notimpose disproportionate burdens on a select few, when they do notunduly transgress the home, when they are designed to minimizeinconvenience and other costs to the public, and when they areeffectively "sold" to the public through communication anddemonstration of the measure's benefits.266 Finally, the Americanexperience with mandates governing environmentally significantindividual behaviors suggests that objections may soften over time.Ideas and programs initially greeted with deep skepticism, such as thevehicle I/M program, may ultimately become routine.

My analysis also suggests a few points about the narrower,privacy-based intrusion objection. First, all modes of regulation-both direct and indirect-are susceptible to this privacy-basedintrusion objection. Even smart meters, which indirectly regulateindividuals by collecting information to educate them about theirenergy use, to encourage voluntary conservation, and to support peakpricing, can trigger privacy concerns. Second, although the intrusionobjection is deemed particularly important with respect to directregulation of environmentally significant individual behaviorsbecause of the assumption that those behaviors must be detectedusing methods likely to trigger intrusion objections-such asmonitoring within the home-experience to date suggests that thisproblem is not as pervasive as perhaps assumed. Many behaviors areregulated without triggering insurmountable intrusion objections, andeven some approaches that do occasion concerns about informationalprivacy, such as RFID tracking of garbage, are ultimately accepted insome communities.26 In other words, some environmentallysignificant behaviors can be directly regulated without using theprivacy-invading means hypothesized in the literature and in the earlyprivacy cases.

266. For an argument that local development and enforcement of mandates may facilitatetheir implementation, see Kuh, supra note 12, at 165-96.

267. Ultimately, the question will revert to one of balancing: Do the measure's benefitsoutweigh its costs-including any privacy costs imposed to detect behavior and enforce themeasure? This question is salient even in the context of the Fourth Amendment, an area inwhich the permissibility of intrusion is also ascertained by balancing.

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Avoiding public opposition to the environmental regulation ofindividuals, whether direct or indirect, may be particularly difficultfor a variety of reasons. The benefits of regulation may, for example,accrue to future generations or may not be immediate, tangible, orobvious.2" Some strategies that could increase the chances that ameasure will pass public balancing might include (1) maximizing thebenefits achieved by a measure and effectively educating the publicabout those benefits, (2) obscuring the costs imposed on the public, or(3) minimizing the costs imposed on the public. Intrusion-whetherviewed in terms of invading privacy or in terms of governmentoverreaching more generally-is simply a cost that regulation imposeson individuals. Direct mandates on environmentally significantbehaviors may sometimes impose intrusion costs that indirectmethods of regulation do not and may also render more transparentthe costs-intrusion and others-being imposed on individuals. Butindirect methods of regulating individuals can also impose intrusioncosts and visible costs, and such methods are likewise sometimespolitically unacceptable. And any measure, whether its regulation ofenvironmentally significant individual behaviors is direct or indirect,may be vulnerable to opposition if its costs cannot be justified by itsbenefits.

The intrusion objection is thus perhaps better viewed simply as acommonsense, shorthand statement of this accounting. Directmandates on environmentally significant individual behaviors may bea less promising policy tool because they can, in some cases, imposean intrusion cost that indirect regulation of the same behaviors mightnot impose, or because they might make the myriad costs ofregulation more visible to individuals in ways that make it harder forthose measures to muster support. To the extent that direct mandatesare costlier to administer and enforce, that reality would also affectthis accounting. Importantly, restated in this way, the intrusionobjection emerges as a rough guide for assessing when mandates cansuccessfully be applied to environmentally significant individualbehaviors, as opposed to an explanation for why mandates are notgenerally suitable for that purpose.

268. See Biber, supra note 108, at 1317-28 (explaining the difficulty of maintaining politicalsupport for regulation when there is a delay between human activity and the environmentalharms imposed by that activity because individuals tend to have high discount rates andexperience the endowment effect, especially when such regulation constrains longstandingactivities).

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So what would a mandate on such behaviors that respects theseprinciples and that has a greater potential to survive public balancinglook like? Imagine a local ordinance prohibiting energy waste. Theordinance might include a catchall prohibition on energy waste andcould provide a list of examples of prohibited conduct, all externallydetectible. The list might include excessive idling, driving with tiresthat are not property inflated, failing to change a vehicle's air filter atrecommended intervals, leaving porch lights burning during daytimehours, using incandescent bulbs for outdoor lighting, failing to sortrecyclables, and other energy-wasting behaviors that offer thepossibility for detection outside the home." The ordinance might alsoinclude a disclaimer that it does not authorize in-home inspections.Individuals cited for a violation of the ordinance would be ticketedand would have the option of either paying a fine, submitting areceipt showing the purchase of an approved energy-saving device ofequivalent value, or submitting a signed certification that theindividual had implemented an approved energy-saving measure athome.270 The benefits of the ordinance-the projected energy savingsfrom changes in these types of behaviors, as well as the most locallysalient rationale in favor of conserving energy, whether it be thrift,national security, or avoidance of environmental harms-should beclearly stated upon its enactment, reiterated in the literatureaccompanying tickets, and incorporated into any associated public-information campaign.27 1

269. Many of these examples are taken from Michael Vandenbergh's article, IndividualCarbon Emissions: The Low-Hanging Fruit, supra note 12, which identifies ways individuals andhouseholds can reduce energy consumption, id at 1718-19.

270. Some work suggests that fines may actually increase undesirable behavior, perhaps bycommunicating that individuals may engage in a behavior as long as they pay a "price,"displacing altruistic or intrinsic motivations. See Bruno S. Frey & Reto Jegen, MotivationCrowding Theory, 15 J. ECON. SURVS. 589, 602-03 (2001) (reviewing empirical datademonstrating the crowding theory, including data showing that the initiation of fines for latepickups at a daycare center increased instances of lateness); Uri Gneezy & Aldo Rustichini, AFine Is a Price, 29 J. LEGAL STUD. 1, 14 (2000). For present purposes, I leave open thepossibility that the structure of fines could escalate to better approximate a penalty, as opposedto a price, or that a mandate coupled with a public-education campaign could mitigate thisproblem if necessary. Vandenbergh et al., supra note 13, at 755 ("Studies suggest a synergisticeffect when incentives or fines are paired with a public education campaign to reinforce themoral case for engaging in a behavior." (citing LURA CONSULTING, THE CARROT, THE STICK,AND THE COMBO: A RECIPE FOR REDUCING VEHICLE IDLING IN CANADIAN COMMUNITIES 6-7 (2005))).

271. Communication about the ordinance should take guidance from social-scienceliterature, which provides insights about how best to communicate information to supportbehavioral change. See Vandenbergh et al., supra note 13, at 741-66 (using behavioral research

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Structuring the ordinance in this manner would avoid some ofthe attributes of direct mandates that are likely to engendersignificant public opposition. The imagined ordinance is a localordinance. As I have argued elsewhere, local information may provehelpful in designing and enforcing mandates that will avoid undueobjection.272 Thus, the examples of prohibited conduct should bedecided on a community-by-community basis, and communitiesshould adopt community-appropriate exemptions. Although theordinance would unquestionably prohibit energy-wasting conductthat occurs in the home, such as the use of standby power, the expressprohibition on home entry for enforcement, combined with the factthat specific examples of prohibited conduct are limited to those thatare externally visible, may help to defuse intrusion objections. Yet theordinance has the potential to reach in-home conduct by allowingindividuals to satisfy ticket penalties by modifying their in-homebehaviors. Clear communication of the benefits of the ordinance, inaddition to local tailoring to avoid forcing changes that might provehighly inconvenient or costly in a given community, could help bluntbalancing opposition. Explanations of the benefits of the ordinanceshould also hew to local attitudes and values. And the evenhandedand wide application of the ordinance should avoid fairnessobjections.

This account should not be taken to suggest that this type ofmandate would prove acceptable in all communities. But it does seemlikely to avoid some common objections to direct mandates andperhaps, therefore, to expand the number of communities in which itcould prove successful.

CONCLUSION

The conclusion of this Article is modest. The intrusion objection,frequently held up as a key reason that mandates cannot be reliedupon to change environmentally significant individual behaviors, doesnot in fact pose an insurmountable obstacle. Indeed, mandates on

to provide a framework that accounts for both rational and extrarational responses whenattempting to change behavior).

272. See Kuh, supra note 12, at 165-96. Professor Jason Czarnezki similarly emphasizes theimportance of local tailoring for influencing individual behaviors and recommends thatpolicymakers "[e]valuate what level of government or private action, if any, is best suited tochange specific individual behaviors, recognizing that often much more can be done at the localand community level." CZARNEZKI, supra note 3, at 3.

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environmentally significant behaviors may be more feasible than thepresent literature suggests.

The intrusion objection does, however, capture two challenges tothe use of mandates. First, to the extent that the enforcement ofdirect mandates more frequently requires the collection ofinformation about individuals, mandates may more frequentlyoccasion informational-privacy objections than may indirectregulation. As noted, however, it appears that many opportunitiesexist to impose mandates without collecting this type of information,and this objection might thus be overcome. Second, direct regulation,unlike some forms of indirect regulation, will often make clear toindividuals the costs-including inconvenience, economic costs, andlimitations on choice-that the government is requiring them to incurin the name of environmental protection. Again, the obstacle posedby this transparency of costs is not insurmountable. Moreover, from anormative perspective, the correct response to the problem wouldhardly seem to be that of shunting controls on individuals into formsof indirect regulation that obscure the costs to individuals precisely toavoid democratic debate. Instead, a combination of strategies-localtailoring, use of social-science research, communication of thebenefits and rationales for environmental-protection laws, andrecognition that time can soften public objection-can be employedto speak directly to public questions about balancing.

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